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Judgment
By way of the present petition under Article 226 of the Constitution of India, the petitioner impugns order dated 30th November, 2002 issued
by the respondent No. 3, General Officer Commanding-in-Chief, Headquarters Eastern Command, Kolkata whereby it was directed that an
amount to the extent of 27.5% towards maintenance be deducted from the pay and allowance of the petitioner.
The case of the petitioner is that the petitioner was enrolled as a recruit in Assam Rifles on 30th November, 1991 as a Rifleman General Duty.
The marriage between the petitioner and Smti Dharam Shilla was solemnized on 13th May, 1989 and his wife left the matrimonial house in the
month of February, 1995. It is also stated that the petitioner was harassed by his wife and she lodged CR Case No. 2468 of 2001 under Section
494, 109, 498 (A), 406 IPC.
It is also stated that the wife of the petitioner filed a petition under Section 125 Cr. P.C. for grant of maintenance, being Case No. 2614 of 2002
and the Court awarded interim maintenance @ Rs. 800/- pm and the petitioner has been paying the said maintenance to his wife.
It is further stated that the wife of the petitioner filed a petition under Section 13 of the Hindu Marriage Act, being Case No. 230 of 2004 and
the same is pending.
It is also stated that respondent No. 3 in exercise of powers conferred under Section 91 (i) of the Army Act 1950 read with Rule 193 of the
Army Rules, 1950 awarded maintenance allowance to the tune of 27.5% and the same was ordered to be deducted from the pay and allowance
of the petitioner vide impugned order dated 30th November, 2002.
The petition has been opposed by the respondents by filing affidavit-in-opposition.
I have heard the learned counsel for both the parties and perused the material on record.
The main grievance of the petitioner is that no opportunity of hearing was afforded to the petitioner before passing the impugned order dated
30th November, 2002.
During the course of arguments, Mr. N. Mozika, learned counsel for respondents fairly concedes that opportunity of hearing was not given to
the petitioner and submits that he has no objection if the impugned order dated 30.11.2002 is set aside and the competent authority of respondent
No. 2 will pass a fresh order after affording opportunity of hearing to the petitioner.
Mr. R. Jha, learned counsel for the petitioner is satisfied with the same. He also submits that the petitioner will not claim refund of the amount
of compensation already deducted from the salary of the petitioner. Learned counsel for both the parties have agreed that the amount of
maintenance deducted from the salary of the petitioner till date will be adjusted towards the amount of maintenance to be paid to the wife of the
petitioner.
In view of the facts and circumstances of the case and submissions made by learned counsel for both the parties, the impugned order dated
30th November, 2002 is set aside and it is directed that the competent authority of respondent No. 2 shall pass a fresh order on the application of
the wife of the petitioner after affording reasonable opportunity of hearing to the petitioner as well as wife of the petitioner, in accordance with law.
However, it is made clear that the amount of maintenance paid/deducted from the salary of the petitioner will be adjusted towards the amount of
maintenance awarded by Court under Section 125 of Cr.P.C. In case the competent authority comes to the conclusion that the petitioner is liable
to pay some other amount, the amount already paid will be adjusted towards the same.
The writ petition stands disposed of accordingly.