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2003 DIGILAW 693 (PAT)

Md. Jamil Ahmad Khan v. State Of Bihar

2003-07-10

R.S.GARG

body2003
Judgment R.S.Garg, J. 1. Heard learned Counsel for the petitioner, Counsel for the State and also Counsel for the Respondent No. 7. 2. The petitioner being aggrieved by the order dated 4-1-1999 contained in Annexure-6 bearing Officer Order No. 22/99 has come to this Court inter alia submitting that the Deputy inspector General of Police (Vigilance), Electricity Council, Patna has no jurisdiction or authority to direct the petitioner to pay Rs: 2,000 as maintenance to the private respondent No. 7, Husne Aara Khatoon. It is contended that deduction of the said amount from the said salary to be paid to the Respondent No. 7 is patently illegal and cannot be protected under any provisions of law. 3. The facts in nutshell are that Smt. Husne Aara Khatoon made an application to the Department that during sustenance of his marriage, with the presentpetitioner he contracted second marriage and has deserted Husne Aara Khatoon and her children. On the said application, an enquiry was initiated and thereafter a finding was recorded against the interest of the present petitioner. 4. Taking into consideration the claim of said Husne Aara Khatton vide Annexure-6 a direction was issued to make payment of Rs. 2,000 per month till Smt. Husne Ara Khatoon contracts second marriage or the parties enter into a compromise. 5. It appears that on 8-2-1999 this Court while issuing notice to the Respondent No. 7 stayed the effect and operation of the order contained in Annexure-6. This Court, however, granted the liberty in favour of the Respondent No. 7 to proceed with her maintenance application filed before the competent Court 6. It is reported before me that the maintenance case filed by the Respondent No. 7 has already been allowed, and the Court of competent jurisdiction has allowed Rs. 500 per month as maintenance to the Respondent No. 7. 7. Learned Counsel for the petitioner contended that either under the service conditions or under the general powers of control which vests in the superior authority/ appointing authority, the master has no right to exercise the judicial powers and direct grant maintenance in favour of the spouse of the employee. It is contended by him that in case of non-divorcee muslim woman she has to make an application u/s. 125 of the Criminal Procedure Code and a Court of competent jurisdiction after hearing both the parties may pass an order. It is contended by him that in case of non-divorcee muslim woman she has to make an application u/s. 125 of the Criminal Procedure Code and a Court of competent jurisdiction after hearing both the parties may pass an order. According to him, Annexure-6 is patently illegal and is beyond the powers or jurisdiction of the authority. 8. Learned Counsel for the State Counsel has submitted that this order has been passed looking to the need of the day and to maintain the wife, who was suffering under the hands of her husband, who had contracted second marriage. It was also submitted that the order is based on equity and as the Department wanted the spouse and the children of the Respondent wife not to die of hunger or starvation, the order was passed. This Court repeatedly asked learned Counsel for the State that what is the authority under law under which the said Dy. Inspector General of Police (Vigilance) has passed the order upon which learned State Counsel simply submitted that the order is founded on equity and, therefore, this Court should not interfere in the matter. 9. Undisputedly in a case of non-divorcee muslim wife she has to make an application u/s. 125 of the Code of Criminal Procedure seeking maintenance. Secs. 125 to 127 of the Code is a complete procedure which require filing of the application, issuance of the notice to the other side, recording of the evidence, hearing of the parties and passing of a final order. Any party aggrieved by the final outcome of such application can prefer a revision either to the Court of Sessions or in the High Court. sec. 125 does not confer any jurisdiction on the departmental head or the appointing authority or the disciplinary authority to award maintenance in four of the spouse, who is unable to maintain himself/herself. The service conditions or the Code of conduct does not authorize the Departmental Head or the Superior Officer to issue such an order. The Departmental Head can take an action if the employee commits breach of the service conditions or commits a misconduct but such a Departmental Head cannot issue a direction for payment of maintenance. The question of equity has no role to play in the matter of relationship of master and servant. The equity fills the small gap, it does not cover the void. The question of equity has no role to play in the matter of relationship of master and servant. The equity fills the small gap, it does not cover the void. In the present matter, if the authority had no jurisdiction then under the protective umbrella of equity it cannot protect an absolute illegal order. The order contained in Annexure-6 is patently illegal and shows non-application of mind and non-understanding of law by the Officer, who had issued the said direction. 10. In the High Court at this stage at least it was expected of the State Government that instead of protecting this order they would concede to the position and would say that the order is bad and the same deserves to be quashed but unfortunately the State Government is trying to protect the illegal acts of its subordinates only on the foundation of equity. The order contained in Annexure-6, as I have already observed, cannot be allowed to stand. It is quashed. The petitioner shall entitled to costs from the State Government which is quantified to Rs. 3,000 (Three thousand).