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498a ipc by wife

(Querist) 25 January 2023 This query is : Resolved 
The wife filed a case under section 498A IPC against her police constable husband. The husband filed a divorce case which is pending. The wife again filled a complaint against her husband to the police superintendent alleging that the husband was not paying maintenance. A departmental proceeding was started against the husband wherein merely based on the statement of wife and the police FIR, husband's 3 increments were forfeited as a penal measure. The police superintendent also ordered to pay maintenance to the wife. I want to know the legal authority ship of the police superintendent whether he was justified in passing the order based on the allegations of the wife and taking the FIR as a proof and by interfering in the matter of maintenance when the suit was pending in the court. Kindly opine with the case laws, if any.
kavksatyanarayana (Expert) 25 January 2023
Based on a complaint from the wife the SP cannot take action until the inquiry is ordered and completed.
Sudhir Kumar, Advocate (Expert) 26 January 2023
I tend to disagree.

The appointing authority (apparently SP in case of Constable) is himself the authority to order inquiry.

Stoppage of increments (non-cumulative) is a minor penalty and even inquiry is not mandatory (unless demanded by accused).

The action of the SP is perfectly legal. Dowry demand besides being a criminal offence is also a departmental misconduct for the govt employee. Non-maintenance of family is also a departmental misconduct by Govt servant. Department can proceed with departmental action even without waiting for outcome of the court. In departmental inquiry 100% evidence is not required. Evidenc eof wife is sufficient.

The SP has given a very lenient punishment, which does not absolve the employee from criminal / civil liability.

Most of the departmental proceedings fail in court due to lack of procedure. You have not indicated what procedure was adopted by deptt before awarding this punishment. So no comments can be offered.

However order of the SP directing payment of maintenance does not appear justified. It could have been justified for the appointing authority (apparently SP) to keep on issuing fresh chargehseet as many times as he receives complaint of non-maintenance. Such course would have been much harsh to the employee.
Ziaur Rahman (Querist) 26 January 2023
My post doesn't mention any dowry demand. In West Bengal, withholding the increment is a major punishment. I agree that 100 per cent of evidence is not required to prove the guilt in disciplinary proceedings, but there must be some evidence to arrive at guilt. The point which requires clarification is whether a disciplinary authority can lawfully hold his employee guilty based on an allegation without any piece of evidence. How far a disciplinary authority can interfere in the matrimonial discords between husband and wife? Can he order payment of alimony without the court's order? Can he inquire into the issues of marital discord emerging from the bedroom of an employee? In other words, whether the marital disputes minus dowry demand allegations attract the provisions of lack of devotion to duty, integrity and lack of high standard of professionalism? Whether a spouse's failed marriage makes him it her a person of unbecoming conduct? What do our courts say?
Sudhir Kumar, Advocate (Expert) 27 January 2023
withholding increment (even promotion) is not a major penalty. Non-commutative minor penalty can be awarded without inquiry.

Appointing Authority can interfer in matrimonial life as far as alleged conduct of govt servant is violation of conduct rules.

Lack of integrity / lack of devotion to duty are separate misconducts.

Any way it is open for the govt servant to appeal to the appellate authority within stipulated time.
P. Venu (Expert) 30 January 2023
The penalty imposed as to denial of increment is judicious had the due process been followed. A mere statement is not evidence; however, deposition with the opportunity for the delinquent Government servant to cross-examine the witness constitutes evidence.

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