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J&K High Court · body

2013 DIGILAW 362 (JK)

Mohd. Amin Shah v. State

2013-06-06

DHIRAJ SINGH THAKUR

body2013
1. The case set up by the petitioner in the present writ petition is that on account of certain matrimonial disputes between him and his wife-respondent No. 4, who allegedly filed false and frivolous complaint against him with respondent Nos. 1 and 2, he was forced to execute an affidavit, agreeing to the deduction of half of his salary and payment thereof to respondent No. 4. The affidavit was executed under threat of loss of service and pressure executed by the official respondents through respondent No. 4 herein. It was based upon the affidavit that an order dated 22nd of April, 2009 came to be passed. 2. The petitioner challenges the aforementioned order dated 22nd of April, 2009 on the ground that the same is without jurisdiction and does not carry with it any sanction of law. 3. Learned counsel for the petitioner urged that the said deduction could have been ordered only pursuant to order passed by a Court in terms of Section 488 CrPC and not otherwise. Learned counsel further urged that despite repeated requests to the official respondents that the deduction from salary was illegal, without jurisdiction and without any authority of law, official respondent No. 3 was persisting to deduct the same. Hence, the present petition. 4. Mr. S.S. Ahmed, learned counsel appearing for respondent No. 4 submitted that pursuant to receipt of knowledge that petitioner had married for a second time during the subsistence of the first, she (respondent No. 4) moved representations before the Minister (Incharge), PHE, Irrigation and Flood Control, Department, seeking appropriate action against him under Employees' Conduct Rules. A prayer was also made therein that 50% of the pay of the petitioner be deducted and paid to respondent No. 4 and the minor daughter, born from the wedlock. The learned counsel urged that it was upon the petitioner's realization that he submitted an affidavit before the department, agreeing to pay half of his salary to respondent No. 4, being his first legally wedded wife. It was agreed that the respondent No. 4 upon such payment would withdraw her complaints against the petitioner. It was in those circumstances that the Chief Engineer, Irrigation and Flood Control Department Passed on order dated 22nd of April, 2009, ordering deduction of 50% of Petitioner's salary and payment thereof to respondent No. 4. 5. Learned counsel appearing for respondents Nos. It was in those circumstances that the Chief Engineer, Irrigation and Flood Control Department Passed on order dated 22nd of April, 2009, ordering deduction of 50% of Petitioner's salary and payment thereof to respondent No. 4. 5. Learned counsel appearing for respondents Nos. 1 and 2 argued that the deduction was ordered only on the affidavit filed by the petitioner and the agreement arrived at between the parties i.e. petitioner and respondent No. 4. 6. Heard learned counsel for the parties. 7. It is not denied that the petitioner had submitted an affidavit before the official respondents. It is also the admitted case of the parties that complaints had been filed by respondent No. 4 against the petitioner to the official respondents and the Minister (Incharge), PHE, Irrigation and Flood Control, Department, seeking appropriate action against him under Employees' Conduct Rules. It was under those circumstances that the petitioner appears to have submitted the affidavit, agreeing to the deduction of 50% of his salary. Now, the petitioner seeks to question the order impugned dated 22nd of April, 2009. 8. The issue is what is the effect of the affidavit sworn by the petitioner before the official respondents and whether the petitioner is estopped from challenging the order dated 22nd of April, 2009 having himself sworn an affidavit to that extent. An employee has an indefeasible right to claim the salary as per the conditions of service and rules of recruitment for the work done by him. 9. The right of a spouse to claim a part of the salary of an employee must carry with it the sanction of law. Generally, a spouse may claim maintenance from the salary through the mechanism of section 488 of the CrPC subject to fulfillment of conditions prescribed therein. An employee cannot be said to be estopped in law from refusing to pay such an amount only because of the fact that he had sworn an affidavit before an Executive Authority. The factum of swearing an affidavit before an Executive Authority is inconsequential. It does not bind the deponent. The proper course of action for the respondent No. 4 ought to have been to go through the mechanism as prescribed under Section 488 of the Criminal Procedure Code or any other such enabling provisions applicable to the parties. 10. The factum of swearing an affidavit before an Executive Authority is inconsequential. It does not bind the deponent. The proper course of action for the respondent No. 4 ought to have been to go through the mechanism as prescribed under Section 488 of the Criminal Procedure Code or any other such enabling provisions applicable to the parties. 10. The learned counsel for the petitioner during the course of arguments highlighted the fact that respondent No. 4 was herself an employee working in the J&K SC/ST/OBC Development Corporation Ltd as Managing Director and was drawing a salary of Rs. 55,000/- per month, which was more than the salary of the petitioner. He urged that it was on account of the pressure tactics that the petitioner was forced to execute the affidavit and agreed to the deduction from his salary. 11. It is no part of the Executive Authorities to decide matrimonial disputes and fix the maintenance between an employee and his spouse. The order impugned dated 22nd of April, 2009 was based upon the affidavit filed by the petitioner before the Chief Engineer and should have been held to be good only till 23rd of August, 2012 when the petitioner applied to the Executive Engineer, requesting for the release of his entire salary in his favour on account of his having alleged divorce respondent No. 4. 12. It may be made clear here that whether the divorce was in fact effected or not or is legally valid, is an issue, which the parties may have to prove before any other forum. However, for the moment, the controversy is confined only to the limited extent that once the petitioner had approached the respondents to release his entire salary in his favour, there was no occasion for the official respondents to refuse to release his entire salary as the affidavit sworn by him before the Chief Engineer, leading the passing of the order impugned would not bind the petitioner to make such a request. 13. For the reasons mentioned hereinabove, the order impugned dated 22nd of April, 2009 is hereby quashed. Respondents are directed to pay the full salary along with all consequential benefits to the petitioner. However, respondent No. 4 would be at liberty to approach an appropriate forum, if so advised to establish her claim, if otherwise permitted under law as maintenance from the petitioner. 14. Respondents are directed to pay the full salary along with all consequential benefits to the petitioner. However, respondent No. 4 would be at liberty to approach an appropriate forum, if so advised to establish her claim, if otherwise permitted under law as maintenance from the petitioner. 14. Disposed of accordingly along with connected CMA(s), if any.