Calcutta High Court (Appellete Side)
Rina Sarkar vs Union Of India & Ors on 25 March, 2009
Author: Dipankar Datta
Bench: Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURSIDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Dipankar Datta
W.P. No.32432 (W) of 2008
Rina Sarkar
...Petitioner
Vs.
Union of India & ors.
...Respondents
Mr. Pratik Dhar Mr. S. Basu Mr. Tarun Kumar Das Mr. Jaladhi Das ...for the petitioner Mr. T.K. Hazra Mr. S. Bhattacharya ...for the respondents 1 to 5 Heard on : 4.3.2009 Judgment on : 25.3.2009 The sixth respondent in this petition is the husband of the petitioner. He was in the employment of the Army and has since retired from service on 31.1.2007.
The petitioner had the occasion to initiate proceedings under Section 125 of the Code of Criminal Procedure before the Chief Judicial Magistrate, Birbhum at Suri against the sixth respondent, giving rise to Misc. Case No.35 of 1997. It was allowed on contest on 29.1.2004. The sixth respondent was directed to pay Rs.1,500/- per month to the petitioner on account of maintenance together with cost of Rs.5,000/-. He, however, failed and neglected to pay maintenance as directed by the learned Magistrate. The petitioner, accordingly, made a prayer before the employer of the sixth respondent for deduction of Rs.1,500/- per month from his monthly salary towards payment of maintenance to her as well as deduction of Rs.5000/- towards costs awarded in her favour. The petitioner's request was acceded to and monthly maintenance was being paid to her upon deduction of the amount from the salary of the sixth respondent till his retirement i.e. 31.1.2007.
It may further be noted that on the petitioner's complaint, G.R. case No.97 of 1997 (T.R. 549 of 2001) had been initiated, inter alia, against the sixth respondent under Section 498A of the Indian Penal Code. The sixth respondent was convicted by the Trial Court but on appeal, the conviction has since been set aside.
After the retirement of the sixth respondent from service, no amount was paid to the petitioner by him towards maintenance. The petitioner finding no other alternative had requested the employer of the petitioner to make proportionate deduction from the pension payable to the sixth and to release payment in her favour for her maintenance. The request was not accepted which led to filing of a writ petition before this Court. That writ petition was dismissed by a learned Judge by order dated 23.4.2008. On appeal, the Division Bench by order dated 7.8.2008 set aside the order impugned. The employer of the sixth respondent was directed to take a decision on the representations submitted by the petitioner within a period of three months from date of receipt of a copy of that order.
In compliance with the order of the Division Bench, the Chief Records Officer, EME Records by his letter dated 9.9.2008 communicated to the petitioner the order of the competent authority on her representation for grant of maintenance allowance. It reads as follows:
" 1. In compliance with Kolkata High Court judgement dated 07 Aug 2008 your representation for grant of maintenance allowance has been carefully reconsidered by the competent authority in the light of the existing rules and regulations.
2. In your ibid representations, you have prayed for grant of maintenance allowance under clause V of Para 5 of Pension Regulations for the Army, 1961 (Part I).
3. It is evident from the record that your husband was enrolled in the Army on 15 Jan 1983 and discharged from service on 31 Jan 2007 (AN) on fulfilling the conditions of his enrolment. Based on the judgement dated 29 Jan 2004 passed by Hon'ble Chief Judicial Magistrate, Birbhum, maintenance allowance @ Rs.1500/- per month was paid to you from salary of your husband till he was in service. Thereafter, the payment of maintenance allowance has been stopped as your husband ceased to be subject to Army Act and was not receiving any salary. As per Section 95 of Army Act, 1950 and Section 11 of the Pension Act, 1871 (XXIII of 1871), the maintenance allowance cannot be paid from pension. In accordance with Section 11 of the Pension Act, (Act XXIII of 1871), no pension granted by the Govt on account of past services, shall be liable for seizure, attachment or sequestration by process of any Court in India at the instance of a creditor for any demand against the pensioner or in satisfaction of a decree or order of any such court. The provisions of Army Act, 1950 and Pension Act, 1987 are fully corroborated vide Para 75.1 of Defence Pension Payment Instruction- 2005.
4. That as per records available, no departmental or judicial proceedings was pending against your husband. He has been discharged from service after finalisation of judicial proceedings and maintenance allowance was paid to you till 31 Jan 2007 i.e. till he was in service.
5. In view of the rules position explained above, it is regretted that your request for grant of maintenance allowance out of pension of your husband, cannot be acceded to due to policy constraints."
The order contained in the aforesaid letter is the subject matter of challenge in this writ petition.
Mr. Dhar, learned Counsel appearing for the petitioner contended that in terms of the Pension Regulations for the Army, 1961 (hereafter the 1961 Regulations) and in particular clause 5 thereof, the employer of the sixth respondent would be within his authority to withhold pension and to pay a proportionate amount therefrom to the wife i.e. the petitioner. He invited the attention of the Court to Regulation 5(v) which provides that pension may be withheld, suspended or discontinued when a report is received after sanctioning the pension that judicial proceedings for an offence while committed in service is in progress against an individual. In such case, the pension either whole or part may be withheld or suspended by an order of the President and be made to the wife of the pensioner. According to him, on the date pension was sanctioned to the sixth respondent upon retirement from service on 31.1.2007, the aforesaid appeal against the order of conviction was pending and, therefore, the competent authority erred in observing that on the date the sixth respondent retired from service, no judicial proceedings was pending.
He also contended that in terms of the Pension Act, 1871, the employer of the sixth respondent ought to have deducted a proportionate share of the amount directed to be paid as monthly maintenance allowance to the petitioner from the pension payable to the sixth respondent.
None appeared for the sixth respondent. However, the official respondents were represented but not called upon to answer.
Having heard Mr. Dhar and considering the relevant statutory provisions, this Court regrets that no relief as claimed herein can be granted to the petitioner.
It is true, as contended by Mr. Dhar that on the date the sixth respondent retired from service, the appeal against the conviction was pending but that is hardly a relevant factor for turning the tide in favour of the petitioner. The appeal has ultimately succeeded and the conviction set aside. On setting aside of the conviction, the sixth respondent is a free bird and, therefore, his pension cannot be touched under any circumstances by his employer. The provisions of the Pension Act also do not come to the rescue of the petitioner. As has rightly been observed by the competent authority in its impugned order, under Section 11 thereof no pension granted by the Government on account of past services is liable to seizure, attachment or sequestration by process of any Court in India or in satisfaction of a decree or order of any such Court.
This Court has also looked into Section 95 of the Army Act, 1950. It is clear from a perusal thereof that the Army authorities are not entitled to recover any money from the pension receivable by a pensioner and if at all any amount is to be deducted from any public money due to the pensioner, that must be authorized by the Army Act. No order has been passed under the Army Act which can be called in aid. The statutory provisions, therefore, do not lend any assistance to the petitioner.
Before parting, this Court cannot but help express its anguish in respect of the extant provisions of law in relation to a claim of the present nature. Admittedly, the sixth respondent is under a liability to pay monthly maintenance allowance to the petitioner. He has been violating such order with impunity. A pension is granted to an employee who has retired to enable him survive in his retired life. While the legislature has made appropriate provisions for the benefit of pensioners, and also to safeguard their interest by protecting such pension from attachment, seizure or sequestration, it has not yet visualized the plight of helpless ladies like the petitioner. The petitioner also has a right to live and there cannot be any doubt that the right guaranteed to her by Article 21 of the Constitution cannot be made effective unless she has a means of sustenance. A pensioner may or may not have sufficient means to maintain her wife. If he does not have sufficient means, it is for him to approach the learned Magistrate to seek a variation in the quantum of maintenance to be paid to his wife. But in a case of the present nature, if a pensioner sits idle he demonstrates a 'don't care' attitude. Object of Section 125 of the Code is to prevent vagrancy and destitution. It is a welfare legislation meant to achieve a social purpose. If violation of an order passed by the learned Magistrate under Section 125 of the Code is brought to his notice by a person in whose favour an order has been passed, he has to proceed according to Section 421 thereof for levying the amount due. The monthly maintenance allowances may not even be paid by the violator of the order of the learned Magistrate if he wishes not to pay the same. He can take advantage of the long processes and wreck the morale of the claimant. Even after execution of warrant if the amount is not paid, at best, he can be sentenced with imprisonment. The object of grant of maintenance allowances to a helpless wife through a speedy remedy for providing food, shelter and clothing to the deserted wife is thus completely frustrated. Social justice cannot be a one way affair to protect a pensioner. The Constitution in its preamble is emphatic that we, the people of India, shall strive to secure social justice to all. Merely because the violator is a pensioner should not give him immunity from attachment, seizure or sequestration of pension. It is high time that the legislature visualizes claims of the present nature to ameliorate the grievance of helpless ladies like the petitioner for whom the preamble and Article 21 of the Constitution would remain illusory if the other laws are not changed to meet the demands of present day society. This Court can only hope and trust that those entrusted with the duty of framing laws would rise to the occasion by making appropriate provisions to prevent abuse of law and the process of Court by recalcitrant pensioners like the sixth respondent.
The writ petition stands dismissed without any order for costs reserving the liberty of the petitioner to claim maintenance against the sixth respondent by taking recourse to the provisions of the Hindu Adoptions and Maintenance Act, 1956 as also to take recourse to the Code for seeking implementation of the order of the learned Magistrate under Section 125 thereof.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)