LAW RELATING TO ISSUANCE OF SUCCESSION CERTIFICATE

 

LAW RELATING TO ISSUANCE OF SUCCESSION CERTIFICATE

By- 

Rajneesh Mohan Verma

Deputy Director

Judicial Training & Research Institute,

UP, Lucknow

Introduction

Property in inheritance generally passes on to the legal heir after doing some legal formalities. These formalities are incomplete without proper legal documents indemnifying the recipients to be the actual heir/s or the legal recipients of the rights or property. These documents are prepared on the basis of a legal will or self-declaring documents prepared by the deceased for transfer of his property to any person or group after his death. In absence of a legal will, documents like a Succession certificate or a legal heir certificate have to be obtained by the person to legally inherit the property or the right to manage the assets of the deceased . In the event a person dies leaving a Will, a succession certificate may not be required for inheriting the assets of the deceased since the entire estate of the deceased shall vest on the executor of the Will for distribution as per the instructions set forth in the Will. Although Section 370 of the Indian Succession Act, 1925, specifically provides that a succession certificate shall not be granted with respect to any debt or security in cases where a right to such property is required to be established by obtaining letters of administration or a probate. In certain states, a probate and a succession certificate are compulsory to transfer the title of an immovable property. It is to be further noted that in the absence of a Will, banks and financial institutions typically rely on the succession certificate and/or a legal heirship certificate.

A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. Usually, a succession certificate is a key in the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative. Issuance of succession certificate does not give right of succession to the claimed property of a deceased person, because it does not determine the right, title and interest of the deceased person to a particular property or entire property. However, successor(s) of an intestate deceased person is/are entitled to inherit the deceased person’s properties.

Law and Procedures for grant of Succession certificate:

The grant of succession certificates is dealt with in Part X (sections 370 to 390) of the Indian Succession Act, 1925. Under Section 372 an application for a succession certificate is to be made to the “District Judge”. The term “District judge’ is defined in Clause (bb) of Section 2, as “the Judge of a principal Civil Court of original jurisdiction”. The particulars mentioned in Section 372 should be set forth in the application for succession certificate. According to section 370 read with Section 373 There are three restrictions (or conditions) on the grant of succession certificates by a Court which are as under :

(1) that the property in respect of which the certificate is asked for must be a “debt or a security,”

(2) it must not be a debt or security to which a right is required by Section 212 to be established by letters of administration, and

(3) it must not be a debt or security to which a right is required by Section 213 to be established by probate.

In case the deceased died intestate, there is no question of Section 213 applying. Section. 212 provides as follows:

212 Right to intestate's property. (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.

(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi.

Therefore In case the deceased is of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi community Succession certificate may be granted by the competent court.

What is “Debt, or Security”?

For the purpose of the Succession certificate section 370 (2) defines the term ‘Security’ in the following words:-

(2) For the purposes of this Part, “security” means —

(a) any promissory note, debenture, stock or other security of the Central Government or of a State Government;

(b) any bond, debenture, or annuity charged by Act of Parliament of the United Kingdom on the revenues of India;

(c) any stock or debenture of, or share in, a company or other incorporated institution;

(d) any debenture or other security for money issued by, or on behalf of, a local authority;

(e) any other security which the State Government may, by notification in the Official Gazette, declare to be a security for the purposes of this Part.

Section 370 of the Indian Succession Act, gives the definition of 'security, but the word 'debt' is not defined in Part X of the said Act. However, Section 214 defines the term ‘debt’ to mean any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.

Hon’ble Allahabad High Court in the case of “Dina Nath vs Balkrishna And Anr. AIR 1963 All 46” has observed in para 6 that “What is ordinarily understood by the word 'debt' is a liability owing from one person to another whether in cash or Kind, secured or unsecured, whether ascertained or ascertainable, arising out of any obligation, express or implied.”

But this definition was not accepted by the Bombay High Court. In the case of Ranchhoddas Govinddas Banatwala vs Unknown (1976), 78 BOMLR 219 Hon’ble Bombay high court after discussing in detail the Dina Nath's case, denied to accept the definition of debt given by the Hon’ble Allahabad high court and held that- Debts and securities are merely two species of property out of the wide varieties of property which a man may own. That the word 'debts' is used in the Indian Succession Act to mean pecuniary liability only and is also shown by Sections 322 to 325 of the Indian Succession Act which deals with payment of debts from the estate of a deceased. the word 'debt' does not include any movable Property other than a specific or ascertained or liquidated sum of money.”

In the case of Lalsa vs Ivth Additional District Judge, 1999 (3) AWC 1828, Hon’ble Allahabad High Court after a detailed discussion of various rulings of different high courts and the Judgement delivered in Dina Nath’s case, has defined the term ‘debt’ in the context of succession certificate. In para 7 of the said judgment Hon’ble court has observed that-

“Debt' has not been defined in Chapter X of the Act relating to the succession certificate although the same has been defined in Section 214(2) to mean any debt except rent, revenue, or profits payable in respect of the land used for agricultural purposes. This limited definition of the expression 'debt' is to be confined to the statutory provisions of Section 214(2) of the Act only. The meaning of the word 'debt' is wide enough. The dictionary meaning is quite general. In Strouds Judicial Dictionary, the meaning of the word 'debt' is given as a sum of money payable in respect of the liquidated money demand recoverable by action. A debt is a sum of money now payable or a sum of money which will become payable, in future by reason of a present obligation. In the Law Lexicon by P. Ramanatha Aiyar, (1997 Ed.), the expression 'debt' has been defined to mean a sum of money due under an express or implied agreement (as) a bond or bill or note ; amount due or payable from one person to another in return for money, service, goods, or other obligation. A debt is a sum payable in respect of a money demand recoverable by action. In common parlance it is a sum of money due from one person to another. The word 'debt' is of large import, including not only debts of record or judgment, and debts by speciality but also obligations arising under simple contract, to a very wide extent, and in its popular sense includes all that is due to a man under any form of obligation or promise. For example, a dividend declared by a company is after its due date a debt from the company to the share-holder, A dividend is not a debt until it is declared. The word 'debt' as used in section 60 C.P.C. must be confined to a debt in ordinary sense of the word, that is to say, an existing debt. It involves (a) an obligation incurred by the debtor, (b) a liability on the part of the debtor to pay for that obligation at a certain date. Until that obligation has been fully incurred, there is no debt.”

The meaning of the word 'debt' came to be considered by the Apex Court, though in a different context. In the case of Kesoram Industries and Cotton Mills Ltd. v. Commissioner of Wealth Tax (Central). Calcutta, AIR 1966 SC 1370, in para 22, at page 1377, the position has been summarized as below :

"We have briefly noticed the judgments cited at the Bar. There is no conflict in the definition of the word 'debt'. All the decisions agree that the meaning of the expression 'debt' may take colour from the provisions of the concerned Act, it may have different shades of meaning. But the following definition is unanimously accepted: "a debt is a sum of money which is now payable or will become payable in future by reason of a present obligation “debitum in praesenti, solvendum in futuro". The said decisions also accept the legal position that a liability depending upon a contingency is not a debt in praesenti or in futuro till the contingency happened. But if there is a debt the fact that the amount is to be ascertained does not make it any the less a debt if the liability is certain and what remains is only the quantification of the amount....."

 Indian Succession Act 1925 clearly contemplates the formalities to be complied with before issuance of succession certificate. Courts may come across a situation, where a party file an application for issuing a succession certificate for those things, for which courts have no jurisdiction to entertain it. If any authority requires the party to furnish a succession certificate to inherit any claim and if the party presents an application for issuing succession certificate in compliance thereto, this itself does not confer any jurisdiction on the court to issue a succession certificate. It is very necessary for courts to strictly adhere to the provisions of Indian Succession Act "It is not in the power of courts to issue a Succession certificate to any person for compassionate appointment. By reason of grant of such certificate, a person in whose favour succession certificate is granted becomes a trustee to distribute the amount payable to the deceased to his heirs and legal representative. He does not derive any right thereunder. The succession certificate does not confer any title and neither prove any relationship between the deceased and the applicant." State of Chhattigarh and ors. v. Dhirjo kumar Sengan, AR 2009 SC 2568.

Can a succession certificate be granted in respect of the dues on account of Provident Fund, Compulsory Deposit Scheme, Life Insurance, arrears of pay, Death-cum-retirement Gratuity etc., ?

The answer is yes? In the case of Lalsa vs Ivth Additional District Judge, 1999 (3) AWC 1828, Hon’ble Allahabad High Court has observed that- “On the death of an employee, the various dues become payable. The employer under the law as well as under the contract of employment, is duty-bound to make payment of the amounts under the various heads to the legal heir of the deceased employee. On the death of the employee, the employer becomes Indebted to the legal heirs to the extent of the amounts, which become payable under the various heads consequent upon death of the employee. Therefore, the amounts of the Provident Fund, Compulsory Deposit Scheme, Life Insurance, arrears of pay, Death-cum-retirement Gratuity etc.. which are held by the employer and become payable as a result of the death of the employee, will undoubtedly fall within the meaning of the expression 'debt'. These amounts are payable on account of the services rendered by the deceased employee, contributions and deductions made from his salary and the wages which were actually earned by him. The amounts under the aforesaid categories are obviously in the form of debts in the hands of the employer and, therefore, they are covered by the provisions for issue of succession certificate contained in Chapter X of the Act. It would not be out of context to point out that the succession certificate merely authorizes the party in whose favour grant has been made to give full discharge of liability to the employer debtor. It, however, does not confer any title to the person in whose favour the grant has been made. Such a right can always be, established in proper proceeding in a Court of law.”

Competent Court to grant Succession Certificate:

Section 371 of the Act talks about the courts having Jurisdiction to grant certificates. According to this section “The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part.”

As mentioned above according to section 371 of the Act, it is the court of District Judge who is competent to issue a certificate under part x of indian succession Act. Now the question may arise that why the petitions for this certificate are being filed and are pending in the courts of Civil Judge Junior and Senior division of various districts in the state of Uttar Pradesh?

In this regard, it is pertinent to mention here that Section 388 of this chapter confers power upon the State Government to invest any court inferior to the grade of District Judge with power to exercise the functions of the District Judge under this part namely part 10. By exercising the power given under section 388, The State Government has issued a notification dated 11.3.1955 to the following effect:-

"1. In supersession of all previous notifications on the subject, and in the exercise of the powers conferred by sub-section (1) of section 388 of the Indian Succession Act, 1925 (Act No. XXXIX of 1925) the Governor of Uttar Pradesh is pleased to invest all Civil Judges in the State with power to exercise the functions of a District Judge under Part X of the said Act within the local limits of their respective jurisdiction as Civil Judges.

2. In supersession of all previous notification on the subject and in the exercise of powers conferred by sub-section (1) of Section 388 of the Indian Succession Act, 1925 (Act No. XXXIX of 1925) the Governor of Uttar Pradesh is pleased to invest all Munsifs in the State with power to exercise the functions of a District Judge under Part X of the said Act within the local and pecuniary limits of their respective jurisdiction as Munsifs. {Government Notification No. 4516(i)/VII--900(8)-53. dated March II 1955 and No.4516 (iv)/V1I-900(8)-53, dated March 11,1955.} (See; WRIT - C No. - 63679 of 2011, Ashok Mahaur V. Darshan Singh And Another decided by Hon’ble Allahabad High Court)

Now it is clear that Civil Judge Junior Division and Civil Judge Senior Division in the state of Uttar Pradesh is competent enough to entertain and decide the application for succession certificate according to their pecuniary and territorial jurisdiction. Following points should be kept in mind by the presiding officer of a Civil Court while deciding the admissibility and Jurisdiction of the court :-

(1) Pecuniary Jurisdiction: 
Application for succession certificate will be presented before a Court of Civil Judge Junior or Senior Division as the case may be, having pecuniary Jurisdiction.

“(Note:- The pecuniary Jurisdiction of Civil Judge Junior was inhanced by UP Act No. 14 of 2015 by which the Bengal, Agra and Assam Civil Courts Act, 1887 and The Provinicial Small Cause Courts Act, 1887 were amended in their appilication to the State of Uttar Pradesh. According to this amendment Civil Judge Junior Division has pecuniary Jurisdiction upto Rupees Five Lakhs and Civil Judge Senior Division has Jurisdiction above Rupees Five Lakhs. Newly inducted Civil Judge Junior Division has pecuniary Jurisdiction only upto Rupees One Lakh until and unless the complete Jurisdiction of rupees Five lakhs has been given by the Hon’ble High Court to the officer concerned.)”

(2) Territorial Jurisdiction: the territorial jurisdiction of the court for succession certificate proceedings will be decided on the following grounds:

(i) Residence of Deceased: The application will be presented before such Civil court within whose jurisdiction the deceased was ordinarily residing at the time of his death.

(ii) No fixed place of Residence: If the deceased had no fixed place of residence at the time of his death, then the application will be presented before such-Civil Judge within whose jurisdiction any part of the property of the deceased may be found.

What does the term “ordinary resident” means ?

In the case of Rameshwari Devi v. Raj Ball Shah and another, AIR 1988 All 68, it was held that in ordinary circumstances the jurisdiction falls within which the deceased ordinarily resided at the time of his death. If at that time, he had no fixed place of an abode then the jurisdiction would fall within which the property is situated. The second branch would not be attracted until and unless the first branch is exhausted. The second branch is an alternative provision that is attracted only in those cases in which the deceased at the time of his death had no fixed place of residence. The permanent residence is necessarily a fixed place of abode. The permanent residence mentioned by a person, on a transferable job, is the fixed place of abode. However, by reason of employment one is transferred from one place to another or he is staying at a different place at the time of his death in that event, it cannot be said that he ordinarily resided at the place where he was staying for his treatment nor it could be said that he was ordinarily residing at the places where he was serving by reason of his transferable service.

The word “ordinary resident” was defined by Hon’ble Allahabad High Court in the case of Km. Rakhi And Another vs Ist Additional District Judge 2000 (1) AWC 323, AIR 2000 ALL 166 in this case the death took place at Kanpur where he was on account of his treatment. Admittedly, the deceased was posted at Allahabad. He was a railway employee and used to be transferred from one place to other. Thus, Kanpur where the deceased had been staying for the purpose of his treatment cannot be said to be his place of ordinary residence. He had been in Kanpur for his treatment which is for a particular purpose which is not an ordinary purpose. An ordinary resident means that he had resided voluntarily and ordinarily and not for any particular purpose. Admittedly, the address of the deceased was at Firozabad. This was shown in the records of his service. The document contained in Annexure-9 to this petition also mentions the address of the deceased as at Firozabad. Thus from the document, on which the petitioner had intended to rely, disclosed that the deceased was an ordinary resident of Firozabad which was his permanent or fixed place of abode. Therefore, his stay at Kanpur at the lime of his death for the purpose of his treatment cannot be treated to be his ordinary residence or that the deceased used to ordinarily reside at Kanpur at the time of his death within the meaning of Section 371of the Succession Act.

Content of Application for certificate:- 

According to section 372(1) Application for such a certificate shall be made to the District Judge (Now in UP Civil judge Junior or senior division as the case may be) by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:—

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that a person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860).

(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.

Object of this provision:-

The procedure prescribed under the Act is for the purpose that only an heir, who is entitled to receive benefit, can come forward and make a claim to the amount to which the deceased was entitled. No imposter or unauthorised person could claim a benefit that accrues upon the death of a person (Mansha Ram Mishra v. the State of U.P., 2008 (4) ALJ 426). A holder of succession certificate is bound to show that he had discharged his duty to handing over the amount received by him to the heirs entitled to the amounts if the holder is but one of the co-heirs (Uma R. Sett v. Dipali Rani Sett, 2006 (1) CHN 373).

Procedure on application:-

Section 373 talks about the procedure for the presentation of the application.

According to section 373(1) If the District Judge (Now in UP Civil judge Junior or senior division as the case may be) is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing—

(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

{Note: Rule 509 of G.R.Civil provide that, Under section 373, clause 1(b), Act No. XXXIX of 1925, a notice of application for grant of a certificate shall be given —

(1) by posting a proclamation on the notice-board of the Court;

(2) by posting a duplicate thereof on the house of the deceased;

(3) by the beat of the drum in the mohalla of the town or village in which the deceased last resided.

The sum of 25 paise in cash shall be tendered with every such application to cover the expense of proclaiming the notice by the beat of the drum.}

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and fitness in other respects of the applicants.

Requisition of security from grantee of certificate:-

According to section 375 (1), The Judge shall in any case in which he proposes to proceed under sub-section (3) or sub-section (4) of section 373, and may, in any other case, require, as a condition precedent to the granting of a certificate, that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other sufficient security, for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities.

(2) The Judge may, on an application made by the petitioner and on cause shown to his satisfaction, and upon such terms as to the security, or providing that the money received be paid into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge of the Court, and to recover, as trustee for all persons interested, such amount as may be recoverable thereunder.

Contents of Certificate:-

Section 374 provides for the content of a succession certificate. According to it, When the Judge grants a certificate, he shall therein specify the debts and securities set forth in the application for the certificate, and may thereby empower the person to whom the certificate is granted—

(a) to receive interest or dividends on, or

(b) to negotiate or transfer, or

(c) both to receive interest or dividends on, and to negotiate or transfer, the securities or any of them.

376. Extension of certificate:-

(1) A District Judge may, on the application of the holder of a certificate under this Part, extend the certificate to any debt or security not originally specified therein, and every such extension shall have the same effect as if the debt or security to which the certificate is extended had been originally specified therein.

(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended maybe conferred, and a bond or further bond or other security for the purposes mentioned in section 375 may be required, in the same manner as upon the original grant of a certificate.

377. Forms of certificate and extended certificate.—

Certificates shall be granted and extensions of certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.

SCHEDULE VIII

(See section 377)

FORMS OF CERTIFICATE AND EXTENDED CERTIFICATE

In the Court of

To A. B.

Whereas you applied on the day of for a certificate under Part X of the Indian Succession Act, 1925, in respect of the following debts and securities, namely:-

Debts

Serial Number

[Name] of debtor

Amount of debt, including interest, on date of application for certificate

Description and date of instrument, if any, by which the debt is secured



Securities

DESCRIPTION

Serial Number

Distinguishing number or letter of security

Name, title or class of security

Amount or par value of security

Market-value of security on date of application for certificate

This certificate is accordingly granted to you and empowers you to collect those debts [and][to receive][interest][dividends][on][to negotiate][to transfer][those securities].

Dated this day of Civil Judge

In the Court of

On the application of A. B. made to me on the day of ,I hereby extend this certificate to the following debts and securities, namely:—

Debts

Serial Number

[Name] of debtor

Amount of debt, including interest, on date of application for extension

Description and date of instrument, if any, by which the debt is secured

Securities

DESCRIPTION

Serial Number

Distinguishing number or letter of security

Name, title or class of security

Amount or par value of security

Market-value of security on date of application for certificate

This extension empowers A. B. to collect those debts [and] [to receive] [interest] [dividends] [on] [tonegotiate] [to transfer] [those securities] .

Dated this day of District Judge

Surrender of superseded and invalid certificates.(Sec.389):-

(1) When a certificate under this Part has been superseded or is invalid from any of the causes mentioned in section 386 (either revoked u/s 383 or by order in appeal u/s384), the holder thereof shall, on the requisition of the Court which granted it, deliver it up to that court.

 

(2) If he willfully and without reasonable cause omits so to deliver it up, he shall be punishable with a fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months or with both.

Nature of proceeding:

The proceeding for the grant of succession certificate is a summary inquiry in nature. Grant of succession certificate does not depend on the right of any claimant to the debt. The certificate does not recognize or invest in the grantee title to the debt or property in the debt. It only enables him to collect the debt and give valid discharge to the creditor. Grant of a certificate does not strike out or destroy the claims of others. If there be conflicting claims, they have to be settled in appropriate proceedings in accordance with the law. In the summary enquiry trusted by the provisions, the Judge is not expected nor required to decide whether actually, the debt belonged to the deceased or not. That is a matter extraneous to the enquiry. That may have to be decided in the proceedings in which the grantee of a certificate commences against the creditor for recovery if such a dispute is raised. To determine a substantial dispute between the parties, It may have been decided in any other proceedings for such dispute existing among the rival claimants.

On the other hand, if the application is entertained the Court has to confine itself to the issue of the right to the certificate in which the Court has to decide the question of title to the certificate asked for and to grant the same to the applicant if he appears to be the person "having prima facie the title thereto". The Court can not determine too intricate questions of law or fact, nor The court can direct the parties to seek a declaration in respect of their rights. On the other hand, sub-section (3) of Section 373 was to be read, construed and enforced in the light that succession as the rule which is to be promoted and not to be defeated. So, it cannot be construed that mere grant of such certificate or a decision in such proceedings would constitute to be a decision on an issue finally decided between the parties.

A direction for a DNA test cannot be given in a proceeding for the issuance of a succession certificate under the Indian Succession Act, 1925. The grant of the certificate does not establish the title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application, the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so choose, can also adduce evidence to oppose the grant of succession certificate. The trial court erroneously held that the documents produced by the respondents were not sufficient or relevant for the purpose of adjudication and the DNA test was conclusive. A DNA test is not to be directed as a matter of routine Banarsi Das VS Teeku Dutta, 2005(4) SCC 449.

Res - Judicata:

In summary inquiry the Court has only to ascertain as to who is entitled to the certificate. The court does not substantially decide the rights of the parties while issuing succession certificates. Therefore, proceedings for granting succession certificate would not operate as res-judicata in any other suit or proceeding. This contention was held in the case of Madhavi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, AIR 2000 SC 2301, as " Any decision made in proceeding under Section 372, for the grant of Succession Certificate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. Thus, even if no appeal is preferred by the appellant against the decision of the trial Court arising out of proceedings for the grant of Succession Certificate, the principle of res judicata would not apply". In one case only one succession certificate can be granted Ganga Dei V/S Munia, AIR 1966 107 ALL. A nomination does not amount to a transfer, but it merely enables the nominee, in the event of the death of the assured, to get the amount of the insurance policy. Nomination creates no interest in the nominee in respect of the title to the insurance policy (Mahadeo Nath v. Meena Devi, 1976 AIR(All) 64.)

Certificate in favour of opposite party:

In a case applicant alone has made the application for the issue of succession certificate. However, the opposite parties filed objections and requested that succession certificate be issued in their names. It was not necessary for the opposite parties to move a fresh application for issue of succession certificate. The opposite parties in their objection made a request for the issue of the certificate and therefore, for the purpose of Sections 372, 373 of the Indian Succession Act, 1925 the opposite parties shall be deemed to be applicants to issue succession certificate. There is no bar that succession certificate cannot be issued in favour of the objectors. The multiplicity of the suits should never be encouraged. The matter for issue of succession certificate question could be decided in the application moved by the applicant itself and therefore, there was no necessity for moving of fresh application by the opposite parties Dulia Devi v. Dulia Devi, 2001 AIR (All) 195.

Imposing Conditions:

The court is only required to make a summary enquiry in order to find out as to whether the petitioners are the rightful claimants or not. The court does not have any jurisdiction to impose a condition such as the amount would be kept in a fixed deposit for a certain period of time. The imposition of such a condition is clearly outside the domain of the jurisdiction of the Court while issuing a succession certificate under Section 373 of the Indian Succession Act. While issuing succession certificates, courts are not empowered to hold or give direction for the use of claimed dues. The holder of the succession certificate is fully empowered to use the claimed amount as per his requirement. No such condition can be imposed by the court while granting succession certificate Rizwana and Others V/S Civil Judge (Senior Division) And Others, 2008 (1) AWC 551.

Effect of Nomination:

It is clear that the amount in any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with the law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. Amounts received by the nominee are to be distributed according to the Hindu Succession Act, 1956 Shipra Sengupta V/S Mridul Sengupta, 2009 (10) SCC 680. A mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the life insurance policy, on the death of the insurer. The nomination only indicates the hand which is authorized to receive the amount on payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession. Sarbati Devi and another Vs. Smt. Usha Devi, 1974 I SCC 424.

A succession certificate can be granted in favour of any person. It may be granted to an heir or a nominee. By reason of grant of such certificate, a person in whose favour succession certificate is granted becomes trustee to distribute the amount payable by the deceased to his heirs and legal representative. He does not derive any right thereunder. The succession certificate merely enabled him to collect the dues of the deceased. No status was conferred on him thereby nor it did prove any relationship between the deceased and the appicant. State of Chhattisgarh and others v. Dhirjo kumar Sengar, (2009) 13 SCC 600. Succession certificate does not amount to declaration of the relationship of parties to get the service on compassionate appointment. U.P. Jal nigam, Banda, Jhansi and another v. Rajendra, (2014) 105 ALR 656.

COURT FEES:-

Sec. 379 Mode of collecting Court-fees on certificates -(1) Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-fees Act, 1870, (7 of 1870) in respect of the certificate or extension applied for.

(t) If the application is allowed, the sum deposited by the applicant shall be expended, under the direction of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid.

(u) Any sum received under subsection (1) und not expended under sub-section (2) shall be refunded to the person who deposited it.

A plain reading of S. 379 shows that the purpose and object of the provision was a procedure for collecting Court-fees on the certificate. It was a mode provided to collect the Court-fees payable on the certificate if granted. Sub-section (2) provides that out of deposit made, the Court-fees would be paid. In case the certificate is not granted and the amount is not spent for the purpose of payment of Court-fees in that event, the same would be refundable to be deposited. Sub-section (1) requires a deposit of a sum equal to the fee payable under the Court-fees Act in respect of the certificate applied for. Such a deposit is to accompany the application for a certificate. The expression 'shall' used here has to be interpreted on the basis of the purpose and object of the provision as has been incorporated. There is nothing to indicate that an application is required to be stamped with the Court-fees which is payable on the certificate. The application filed with the Court-fees payable on a miscellaneous application is paid, the application is maintainable. It is not dependent on its maintainability on the question of deposit of the amount equal to the fee payable on the certificate. The Court-fees on the certificate is payable only when the certificate is issued after the certificate is granted. Till the certificate is granted, no Court-fee becomes payable. It was only a mode of collecting Court-fees for the certificate or in other words, it was a procedure for securing the realisation of the Court-fees payable on the certificate. In case a less amount is deposited when the certificate is granted additional Court-fees is to be paid. Similarly, if an excess amount is deposited, the balance is refunded or in case the amount so deposited is not at all spent, then the same also becomes refundable to the depositor. Sub-sections (2) and (3) makes the position clear to the extent that it was not meant that the deposit should be mandatory or non-deposit thereof would make the application not maintainable. "As such non-deposit will not take away the jurisdiction of the Court to entertain the application. The grant of certificates is subject to payment of Court-fee. Such Court-fees can be paid even at the time when the certificate is issued after the application is allowed and the certificate is granted. Thus, the provision contained in S. 379 of the Succession Act is not mandatory to the extent that non-compliance thereof would hit at the root of the application itself and throw it out in limine. Non-compliance with Sec. 379 of the Succession Act may be an irregularity but not illegality before the grant of the certificate. Such irregularity is curable and can be cured on the eve of the grant by directing the applicant to deposit the amount before the grant is made and certificate." Km. Rakhi and another v. Ist Additional District Judge, Firozabad and other, AIR 2000 All 166.

It has been observed that the provisions of the Code of Civil Procedure are applicable to proceedings for grant of succession certificate by the virtue of the provisions contained in Section 141 of the Code. If provisions of Order XXXIII, regarding declaring an applicant as pauper or an indigent person is applicable to proceedings for grant of probate or letters of administration which are also governed under the Indian Succession Act, there was no rhyme or reason as why the provisions of Order XXXII would not be applicable to proceedings for grant of succession certificate under the Indian Succession Act. Ramji Sao v. Jogeshwari, AIR 1964 Pat 272.

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Rajneesh Mohan Verma

Dy Director JTRI Lucknow

Disclaimer: This article is based on the research and personal Understanding of the Author. It is only for academic purposes and readers are not expected to follow or rely on the opinion of the author. they can form their own opinion. It is also made clear that this web page belongs to the author only and it has nothing to do with any organisation or Institution or working place of the author.

Rajneesh Mohan Verma

DISCIPLINARY PROCEEDINGS AGAINST DISTRICT COURT EMPLOYEE AND RECONSTRUCTION OF RECORD: IN UP COURTS

 

DISCIPLINARY PROCEEDINGS AGAINST DISTRICT COURT EMPLOYEE AND RECONSTRUCTION OF RECORD:

Object

1. To punish the guilty

2. Causing the deterrent effect on others

Departmental Inquiry is to maintain discipline in the service and efficiency of public service. The inquiry in a departmental proceeding relates to the conduct or breach of duty by the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law.

Conduct rules have been framed for regulating the conduct of government servants. Violation or Omission of Conduct Rules is treated as misconduct. Rule 23 of Chapter-VI of the 'Uttar Pradesh State District Court Service Rules, 2013' provides for the complete procedure to be adopted in the matter of disciplinary proceedings against the employees of the District Courts in UP and also for the penalty awardable against them and the appeal against such penalties. Rule 2 (16) of these Rules define Misconduct in the following words:-

“‘misconduct’ for the purpose of these Rules shall mean as defined in Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, 1956.”

Rule 3 of Uttar Pradesh Government Servants Conduct Rules, 1956 provide as under:

3. General.- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.

(2) Every Government servant shall at all time conduct himself in accordance with the specific or implied orders of Government regulating behavior and conduct which may be in force.

What includes disciplinary proceedings?

1. Demanding explanation

2. Holding preliminary inquiry

3. Suspension

4. Holding inquiry for minor or major punishment

5. Appeal

6. Review

Laws governing disciplinary proceedings against civil servants:

Laws governing the disciplinary proceedings against the public servants are as under:

(i) Articles 309, 310, 311 of the Constitution of India

(ii) Rules providing for the conditions of service of the delinquent public servant.

(iii) The Public Servants (Inquiries) Act, 1850

(iv) The Uttar Pradesh Government Servants Conduct Rules, 1956

(v) The Uttar Pradesh Government Servants (Discipline & Appeal) Rules, 1999

(vi) Section 4 of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses & Production of Documents) Act, 1976

(vii) Orders XVI & XVI-A of the Code of Civil Procedure, 1908

(viii) Uttar Pradesh Class II Services (Imposition of Minor Punishment) Rules, 1973

(ix) U.P. Temporary Government Servants (Termination of Service) Rules, 1975

(x) Rules 53 & 54 etc. of the Financial Hand Book, Volume II, Parts II to IV

(xi) Certain Provisions like Rules 16 etc. of the U.P. General Clauses Act, 1904

(xii) Rule 27 etc of the Central General Clauses Act, 1897

(xiii)The Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985 (xiv) Regulation 351-A of Civil Services Regulations

(xv) Judicial Pronouncements

(xvi) Principles of Natural Justice

(xvii) Govt. Notifications & G.Os. Etc

(xviii) Departmental Circulars

"Integrity" & its meaning:

As regards the meaning of the word "integrity", the Hon'ble Supreme Court in the case of Vijay Singh Vs. State of UP & others, (2012) 5 SCC 242 has defined the said word thus : "integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity."

Nature of Departmental proceedings 'quasi-judicial’:

Holding departmental proceedings and recoding finding of guilt against any delinquent and imposing punishment for same is a quasi-judicial function and not an administrative function. Hence, authorities have to strictly adhere to statutory rules while imposing punishment.

PROCEDURE FOR DISCIPLINARY PROCEEDINGS & PENALTY ETC AWARDABLE AGAINST THE EMPLOYEES OF DISTRICT COURTS IN UP W.E.F. 04.07.2013:

Rule 23 of Chapter-VI of the 'Uttar Pradesh State District Court Service Rules, 2013' provides for the complete procedure to be adopted in the matter of disciplinary proceedings against the employees of the District Courts in UP and also for the penalty awardable against them and the appeal against such penalties.

With the coming into force of the 'Uttar Pradesh State District Court Service Rules, 2013' w.e.f. 04.07.2013 vide UP Government's Notification No. 1060/VII-Nyaya-2-2013- 176G/2010 Lucknow, dated July 4, 2013, the following rules governing the service conditions, etc of the employees of the District Courts in UP have stood repealed by Rule 29 of the said 2013 Rules :

(i)The Subordinate Civil Courts Ministerial Establishment Rule, 1947

(ii)The Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1955,

(iii)The Uttar Pradesh Subordinate Courts Staff (Punishment and Appeals) Rules, 1976

(iv)Rule 269 of the General Rules (Civil), 1957

CHAPTER-VI DISCIPLINE & APPEAL RULE

23(1): One or more of the following penalties for good and sufficient reasons may be imposed on a member of the Service, namely;

Minor Penalties

(i) Censure;

(ii) Withholding of increment for a specified period;

(iii) Stoppage of an efficiency bar;

(iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders, to the Government or the High Court;

(v) Fine in case of persons holding Group 'D' posts :

Provided that the amount of such fine shall in no case exceed twenty-five percent of the month's pay in which the fine is imposed.

Major Penalties:

(i) Withholding of increments with cumulative effect,

(ii) Reduction to a lower post or grade or time scale or to a lower stage in time scale;

(iii) Removal from service which does not disqualify from future employment

(iv) Dismissal from the service which disqualifies from future employment.

Explanation: The following shall not amount to penalty within the meaning of this rule, namely:-

(i) Withholding of increment of a member of the service for failure to pass a department examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service.

(ii) Stoppage of the efficiency bar in the time scale of pay on account of one's not being found fit to cross the efficiency bar;

(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation.

(iv) Termination of the service of a person appointed on probation during or at the end of period of probation in accordance with the terms of the service or the rules and orders governing such probation.

(2) Suspension:

(i) A member of the service against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority;

Provided that suspension should not be resorted to unless the allegation against the employee are so serious that in the event of their being established, may ordinarily warrant major penalty;

Provided further that the head of the department by an order in this behalf may place an employee under suspension under this rule;

Provided also that the appointing authority may delegate its power under this rule to the next lower authority.

(ii) An employee in respect of or against whom, an investigation, enquiry or trial relating to a criminal charge, which is connected with his position as an employee of Court or which is likely to be embarrassing in discharge of his duties or which involves moral turpitude, is pending, may, at the

Discretion of the appointing authority or the authority to whom, the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to the charge.

(iii)(a) an employee shall be deemed to have been placed or, as the case may be continued to be placed, under suspension by an order of the authority competent to suspend, with the date of his detention, if he is detained in custody, whether detention is on Criminal charge or otherwise, for a period exceeding forty eight hours.

(b) The aforesaid employee shall, after release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.

(iv) The employee shall be deemed to have been placed, as the case may be, or continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.

Explanation: The period of forty eight hours referred to in sub rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, internment periods of imprisonment, if any, shall be taken into account.

( iv) Where the penalty of dismissal or removal from service imposed upon an employee is set aside in appeal under these rules or under rules rescinded by these rules and the case is remitted for further enquiry or action or with any other directions;

(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such direction as aforesaid, be deemed to have continued in force on or from the date of the original order of dismissal or removal;

(b) If he was not under suspension, he shall, if so directed by the appellate authority, be deemed to have been placed under suspension by an order of the appointing authority on or from the date of original order of dismissal or removal;

Provided that nothing in this sub rule shall be construed as affecting the power of disciplinary authority, in a case where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal under these rules on grounds other that the merits of the allegations on the basis of which, the said penalty was imposed and the case is remitted for further enquiry or action or for any other direction, to pass an order of suspension it being further enquiry against him on those allegations, however any such suspension shall not have retrospective effect.

(v) Whether penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by decision of a Court of law and the appointing authority on a consideration of circumstances of the case, decides of the case, decides to hold a further enquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified their particulars better specified or any part thereof of a minor nature omitted :

(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on or from the date of the original order of dismissal or removal;

(b) If he was under suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.

(vii) Where an employ is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceedings or otherwise) and any other disciplinary proceeding is commenced against him during the continence of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing direct that the employee shall continue to be under suspension till the termination of all or any of such proceedings.

(viii) Any suspension ordered or deemed to have been ordered by him in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.

(xi) An employee placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamentals Rule 53 of the Financial Hand Book Volume II, Part II to IV.

(3) Pay and Allowance etc. of the suspension period : After the order is passed in the departmental enquiry on the basis of criminal case, as the case may be, under these rules, the decision as to the pay and allowances of the suspension period of the concerned employee and also whether the said period shall be treated as spent on duty or not, shall be taken by the disciplinary authority after giving a notice to the said employee and calling for his explanation within a specified period under Rule 54 of the Financial Hand Book Volume II, Part II to IV.

(4) Disciplinary Authority: The appointing authority of the member of the service shall be the disciplinary authority, who, subject to the provisions of these rules, may impose any of the penalties specified in rule 23.

Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed.

(5) Procedure of imposing major penalties: Before imposing any major penalty on an employee, an enquiry shall be held in the following manner:-

(i) The disciplinary authority may himself enquire into the charges or appoint any authority subordinate to him as enquiry officer to enquire into the charges.

(ii) The face constituting the misconduct on which is proposed to take action shall be reduced in the form of definite charge or charge or charges to be called Charge-sheet.

The Charge-sheet shall be approved by the disciplinary authority:

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged employee of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with the oral evidences, if any, shall be mentioned in the charge-sheet.

(iv). The Charged employee shall be required to put in Written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross examine any witness mentioned in the charge-sheet and whether he desired to give or produced evidence in his defence. He shall also be informed that in case he does not appear or file written statement on the specified date, it shall be presumed that he has none to furnish and enquiry officer shall proceed to complete the enquiry ex-parte.

(v). The charge-sheet along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged employee personally or by registered post at the address mentioned in the official record. In case the charge-sheet could not be served in the aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidences is voluminous, instead of furnishing its copy with charge-sheet, the charged employee shall be permitted to inspect the same before the enquiry officer:

(vi) Where the charged employee appears and admits the charges, the enquiry officer shall submit his reports to the disciplinary authority on the basis of such admission.

(vii) Where the charged employee denies the charges, the enquiry officer shall be proceed presence of the charged employee who shall be given opportunity to cross examine such witness, After recording the aforesaid evidences, if enquiry officer shall call and record the oral evidences which the charged employee desires in his written statement to be produced in his defence;

Provided that enquiry officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The enquiry officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provision of the Uttar Pradesh Departmental Enquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976.

(ix) Enquiry Officer may ask any question he pleases, at any time from any witness or from person with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged employee does not appear on the date fixed in the enquiry or at any stage or proceedings in spite of service of notice upon him or having knowledge of the date, enquiry officer shall proceed with the enquiry ex-parte. In such a case the enquiry officer shall records the statement of the witnesses mentioned in the charge-sheet in absence of the charger employee.

(xi) The disciplinary authority, if it considers necessary to do so, may appoint an officer or a legal practitioner, to be known as ‘Presenting Officer’ to present on its behalf the case in support of the charge.

(xii) The charge employee may take assistance of any officer to present a case on his behalf but shall not engage a legal practitioner for the purpose unless the presenting officer appointed by the disciplinary authority having regard to the circumstances of the case so permits:

Provided that this rule shall not applying in following cases:

(a) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the disciplinary authority is satisfied, that for reasons to be recorded in writing, it is not reasonably practicable to hold any enquiry in the manner provided in these rules; or

(c) Where the High Court is satisfied, in the interest of security of the state, that it is not expedient to hold an enquiry in the manner provided in these rules.

(6) Submission of enquiry report- When the enquiry is complete, the enquiry officer shall submits its enquiry report to the disciplinary authority along with all the records of the enquiry. The enquiry report shall contain sufficient record of the facts, the evidence and statement of the findings on each charge and the reasons thereof. The enquiry officer shall not make any recommendation about the penalty.

(7) Action on enquiry report-

(i) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-enquiry to the same or any other enquiry officer under intimation to the charged employees. The enquiry officer shall thereupon proceed to hold the enquiry from such stage as directed by the disciplinary authority according to the provisions of Rule 23 (5).

(ii) The disciplinary authority shall, if it disagrees with the findings of enquiry officer or any charge, record it’s finding thereon for reason to be recorded.

(iii) In case the charges or not proved, the charged employee shall be exonerated by the disciplinary authority, of the charges and would be informed accordingly.

(iv) If the disciplinary authority, having regard to its finding on all or any of the charges is of the opinion that any penalty specifies in Rule 23 (1) should be imposed on the charged employee, he shall give a copy of the enquiry report and its finding recorded under sub-rule (ii) to the charged employee and require him to submit his representation if he so desires, within reasonable specified time. The disciplinary authority shall, having regard to all the relevant record relating to the enquiry and representation of the charged employee, if any, pass a reasoned order imposing one or more penalties mentioned in rule 23 (1) of these rules and communicate the same to the charged employee.

(8) Procedure for imposing minor penalty-

(i) Where the disciplinary authority is satisfied that good and sufficient reasons exists for adopting such a course, it may, subject to the provisions of sub rule (ii) impose one or more of the minor penalties mentioned in Rule 23 (1).

(ii) The concerned employee shall be informed of the substance of the imputations against him and shall be called upon to submit his explanation within a reasonable time. The disciplinary authority after considering the said explanation, if any, and relevant record, pass such orders as he considers proper and where a penalty is imposed, reasons there 4 [of] shall be given. The order shall be communicated to the concerned employee.

(9) Appeals- (i) A person against whom an order imposing a penalty specified in rule 23 (1) (i) & (v) of Minor Penalties has been passed by the Presiding Officer of subordinate court other than the court of District & Sessions Judge, may file an appeal before the Appointing Authority i. e. the District Judge.

(ii) A person against whom an order;

(a) Imposing a penalty specified in any of the clauses (i) to (v) of [minor] penalties and clauses (i) to (iv) of major penalties of Rule 23 (1), have been passed by the appointing authority, i.e. the District Judge; or

(b) Of enhancement of punishment has been made by the appointing authority i. e. the District Judge in an appeal filed under Clause (i) of this sub-rule, he may file an appeal before the High Court.

(iii) The period during which an appeal may be filed shall be 30 days in case of an appeal filed under Clause (i) of this sub-rule, and 90 days in the case of an appeal filed under 6 [Clause (ii)] of this sub-rule. The period of limitation shall count from the date on which the appellant is informed of the order appealed against. The time taken in obtaining the copy of the order appealed against shall be excluded in computing the period of limitation.

(iv) The appellate authority shall consider- (a) Whether the facts on which the order was passed have been established, (b) Whether the facts established afford sufficient grounds for taking action; and (c) Whether the penalty is excessive, adequate or inadequate and after consideration, the appellate authority shall pass such order as appeared to it just and equitable having regard to all the circumstances of the case. (v) Every memorandum of appeal shall contain all material facts, statements, and arguments relied upon by the appellant, shall not contain disrespectful 1 [deleted] or improper language and shall be complete in itself. (vi) An appeal may be withheld by the District Judge if- (a) It is an appeal in a case in which no appeal lies under these rules; or (b) It does not comply with a requirement of these rules; or (c) It is barred by time and no cause explaining the delay is stated in the memorandum of appeal; or (d) It is repetition of the previous appeal and no new facts or circumstances have been stated which afford good ground for reconsideration of the case: Provided that where any cause for delay in filing the appeal is stated in the memorandum of appeal, the District Judge shall not withhold it on the ground that the cause stated is not reasonable. (vii) Where an appeal is withheld, the appellant shall be informed of the facts of the reasons therefore; Provided that an appeal withheld on account of failure to comply with the requirement of these rules may be resubmitted within one month of the date on which the appellant is informed of withholding the appeal and if resubmitted in a form which complies with requirements with these rules, it shall not be withheld. (viii) No appeal shall lie against withholding of appeal by the District Judge. (ix) A list of appeals withheld under Clause (vi) of the sub-rule with the reasons

for withholding the same shall be forwarded quarterly to the appellate authority. (x) The appellate authority may call for the record of an appeal withheld by a District Judge and may pass such orders thereon as it considers just and proper.

(10). Opportunity before imposing or enhancing penalty- No order under sub rule (9) imposing or enhancing penalties shall be made unless the concerned employee has been given a reasonable opportunity of showing cause against the proposed imposition or enhancement as the case may be.

(Note : The format of charge is being produced herewith for better understanding)

कार्यालय

Where a clerk was suspended by the Officiating District Judge, Fatehpur for the allegations that the clerk had used unparliamentary language against the In-charge District Judge on 01.01.2016 and had misbehaved with him and appeared to be in a state of intoxication, the suspension order passed by the In-charge District Judge was held proper by the Allahabad High Court. Interpreting the provisions of Article 309 of the Constitution of India, Rule 23(2) of the Uttar Pradesh State District Court Service Rules, 2013 and Section 10 of the Bengal, Agra & Assam Civil Courts Act, 1887, it has further been observed that the Additional District Judge in the absence of the District Judge was statutory delegatee as there was no delegation of power by the District Judge and being a statutory delegatee, the In-charge District Judge could not have further delegated his powers. But the suspension of the clerk by the In-charge District Judge pending enquiry was not penal in nature and the suspension order passed by him was proper. See: Siddharth Pandey vs. State of UP, 2016 (3) ALJ 316 (All)

Evidence of witness recorded in preliminary enquiry not to be used in regular departmental enquiry unless cross examined by the delinquent: The purpose behind holding preliminary enquiry is only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. The evidence recorded in preliminary inquiry cannot be used in regular departmental in enquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. See: Nirmala J. Jhala Vs. State of Gujarat & Another, AIR 2013 SC 1513 (paras 23 & 25).

RECONSTRUCTION OF RECORD:

Most of the Departmental inquiry pending in District Court is related to loss of record. It is often seen that the order for Departmental Enquiry (preliminary or final as the case may be) includes order for reconstruction of record too. There may be a separate order for the reconstruction of the record. Rule 216 of G.R. Civil provides that whenever it is discovered that a record or portion of a record or a document on the file of a record is missing, the loss or theft shall be immediately reported in writing to the district Judge in whose district or office the loss or theft has occurred, and he in turn shall report the fact to the High Court and state the steps taken to try and recover the paper or papers missing.

By reading Rule 216 of General Rules Civil, it is clear that firstly the effort should be made to recover the paper or papers missing. If by taking all steps to recover the original record still the success become impossible, the only remedy available is to reconstruct the record.

Now the question may arise how to proceed to reconstruct the particular record or paper. The possibility of reconstruction depends on the availability of copy or copies of the missing record. The officer who has been assigned the duty to reconstruct the record must be having the talent to think of the places where such copy or copies could be found and discovered.

The procedure which is generally followed for reconstruction are as follows:-

1. Preparing a file with index and order sheet bearing a number of the order for reconstruction and detailed description of the case regarding which reconstruction proceeding is being initiated.

2. Issuing notices to the parties and counsels of the parties to appear before the officer concerned and submit all the copies of the record whatever may be in their possession.

3. Persual of registers of the copying department just to ensure as to where else the copy of the record could be found.

4. In Criminal matters concerned police station and office of Circle Officer may be required to submit the copies of record from filling of FIR to submission of report U/S 173 CrPC.

5. Once the copy or copies of record are submitted before the reconstructing officer, it is expected that the same shall be endorsed by the opposite party and the officer concerned.

6. In case any party to whom the notice has been issued appears and say that he does not have any copy of record, his statement must be recorded in that regard.

7. Day to Day order sheet of each and every proceeding for reconstruction should be maintained and signed by the officer concerned.

8. After exhausting all the tools and techniques for reconstruction of the record if it is not possible to reconstruct the missing record a report of the same effect may be submitted before the Hon’ble District Judge.

9. In case the record is reconstructed by the officer concerned the same shall be forwarded to Hon’ble District Judge for approval and further order.

Some times record is reconstructed but many of the time it is not. This is why it depends upon the talent and effort of the officer assigned the duty for the same. Each and every officer who has been assigned the duty to reconstruct the record should keep in mind that his effort must be reflected from the order sheet and proceeding adopted for reconstruction.

RAJNEESH MOHAN VERMA