Full Judgment
1 W.P. No.3083/2009 (s) 26.02.2013 Shri S.P. Tripathi, learned counsel for the petitioner. Smt. Indira Nair, learned Senior counsel assisted by Shri K. Rohan, learned counsel for the respondents No.1 to 3. Shri J.L. Mishra, learned counsel for the respondents No.4. This writ petition is directed against the action of respondents in making deduction of 50% salary of the petitioner for the purposes of payment of the same to the respondent No.4 as maintenance. It is contended that without there being any direction from the competent Court, on making application of the Scheme which was subsequently made with respect to which neither any declaration is made by the petitioner not any affidavit to that effect has been filed yet the respondents have started making deduction of 50% salary of the petitioner for payment of the same to the respondent No.4.
2. Facts giving rise to filing of this petition are that the petitioner moved an application for grant of compassionate appointment in place of his father, who was in the services of respondent No.1 to 3. The father of the petitioner was boarded out after his medical examination as was found physically and medically unfit 2 for service by the respondents. The petitioner while making application for grant of compassionate appointment categorically said that he will look after the other family members. However, the petitioner is required to live separately because of family dispute, along with his wife and three children. Though, he was looking after his mother yet an application was made by respondent No.4 alleging that the petitioner was not maintaining the mother and, therefore, a prayer was made that 50% amount of salary, to be received by the petitioner from the employer be deducted and paid to the respondent No.4. Certain clarifications were sought and thereafter the order impugned was issued. However, at no point of time, an order was obtained from any Court for payment of maintenance and, therefore, such an action of respondents was not justified. In view of this, it is contended that the order impugned is bad in law.
3. While refuting the allegations made by the petitioner, the respondents have submitted that it was found that those who have been given the compassionate appointment on the consent of the family members of deceased employee of the respondents or the employee who was boarded out on account of medical grounds were not maintaining the family members after obtaining 3 the compassionate appointment. When these reports were submitted and complaints were received, a policy decision was taken that in case of such compassionate appointment a declaration on affidavit from the person concerned be obtained that he/ she will maintain the family members of the deceased employee or else 50% of the salary payable to the said employee would be deducted and paid to the family members by respondents. In view of this policy decision, on receiving a complaint from respondent No.4, the order was passed and, therefore, it is contended that no wrong is committed.
4. The respondent No.4 has separately filed the return contending that the petitioner was not maintaining the widow mother-the respondent No.4 and has started living separately. He has submitted an affidavit while seeking compassionate appointment making a declaration that he will look after the mother whole of his life. This being so, since the petitioner has stopped maintaining the mother, application was rightly made and directions have been issued in that respect.
5. Heard learned counsel for the parties at length and perused the record”
6. A perusal of the scheme made by the respondents makes it clear that it is prospective in nature. The scheme itself was made in the year 2009. At the time when the petitioner sought the compassionate appointment, the scheme was not in vogue. The petitioner was never called upon to furnish such an affidavit. However, while seeking compassionate appointment the petitioner has made declaration on affidavit that he will look after his mother. This affidavit will not make the scheme formulated in the year 2009 applicable automatically. Unless an affidavit was obtained from the petitioner in terms of the new policy made in the year 2009, the respondents could not have started deduction of his salary to the extent of 50% for the payment of the same to respondent No.4. If any complaint was made by respondent No.4, it was open to the respondents- authorities to advise or guide her to go to the Court of law seeking order of maintenance against the petitioner. The provisions of Section 125 Cr.P.C. cannot be made applicable by the employer on its own. The same have to be looked into only and only when the complaint is made in the Court of competent jurisdiction. At any rate, the official respondents were not authorized to start deduction of the salary of the petitioner for the purposes of payment 5 of the same to the respondent No.4.
7. The petitioner has also the responsibility to look after his mother and he cannot disowned his responsibility. However, during pendency of this petition an offer was made by the petitioner that he is ready to make payment of maintenance to respondent No.4 proportionately. It is stated by learned counsel for the petitioner that the petitioner is getting approximately Rs.15,000/- per month salary and he is ready to pay Rs.3000/- per month as maintenance to the respondent No.4. This being so, the respondents-authorities would be authorized to make deduction of Rs.3000/- per month from the salary of the petitioner for the payment of the same to respondent No.4 only.
8. It has to be examined whether the respondents have made any Pension Scheme in their establishment or not and whether an employee who is boarded out on medical grounds is entitled to the pension or not. It is further to be examined by the official respondents whether on account of death of retired or boarded out employee any family pension is to be paid to the widow and dependent or not”
9. Let this exercise be completed within a period of one month and if any entitlement is available in that respect, let the benefit be extended to respondent No.4. However, at any rate, the official respondents will not deduct more than Rs.3000/- from the salary of the petitioner for payment of the same to the respondent No.4. Any amount earlier deducted will not be affected by this order.
10. The respondent No.4 will be free to resort the remedy under the law to approach the Courts to claim maintenance from the petitioner in case she is not satisfied with the offer of maintenance extended by the petitioner as has been referred to herein above. The writ petition is accordingly disposed of. Certified copy as per rules. (K.K. Trivedi) Judge b