writ petition
gaurav
(Querist) 05 December 2010
This query is : Resolved
sir,
can circulars supersede the law?in delhi cooperatives society act2003 its mentioned for attachments of salary of govt.servants provisions of civil procedure code applies which says max.1/3 salary can be deducted for max 24 months in case of attachments of salary of govt.servant is concerned but office memorandum issued in 1963 by finance ministry clarified that limit of 1/3 deduction not applicable on attachment order issued by collector for recovery of society dues and on the basis of that circular arbitary deduction of around 10000 p.m. is being made. nw my client is facing financial crisis due to this huge recoveryand nw when we have sent his deppt legal notice for that then they have given reply on the basis of office memorandum. nw plzz tell what shall be the appropriate legal remedy for quick relief??plz suggest any citation on this subject
Devajyoti Barman
(Expert) 05 December 2010
No, Circulars are Delegated Legislation whcih can never supersede the Statute. Immediately file a Writ of Mandamus before the high court.
Arun Kumar Bhagat
(Expert) 05 December 2010
Immediately file a writ in the High Court.
Advocate. Arunagiri
(Expert) 05 December 2010
The circular can not supersede the law. Get an injunction from the civil Court for illegal deduction.
R.Ramachandran
(Expert) 06 December 2010
In the instant case it is not that the Circular is violating the provisions of law. The provisions of law is applicable in respect of maintenance cases where it has been said that maximum 1/3rd of the salary can be attached. The law is silent in regard to other recoveries. For instance loan advanced to the government servant on the strength of his employment and the undertaking of the employer that his loan amount would be recovered and remitted to the Society at the agreed instalments. Many of the organizations were under the impression that maximum 1/3rd only could be recovered and therefore failed to recover the dues of the Co-op. societies. Therefore the Central Government issued a O.M. clarifying the situation that 1/3rd maximum applied only for attachment of salary for maintenance purposes; and the same would not apply to the Co-op. society dues.
Having availed the loan one has to repay the same to the Society and if the employer has been made responsible for recovering the same and remitting the employer will jolly well do it. If the client is facing financial crisis it is of his own making.
I don't think that writ would bring any relief in the matter.
Sri Vijayan.A
(Expert) 06 December 2010
I fully agree with Mr.R.R.
The limit 1/3 does not include the recovery towards the repayment of laon advanced from Co-op society and deductions made as per the orders of court.
In this circumstance, I am of the opinion, ur client has to pay the amount or he can request to reduce teh monthly instalment amount.
Kirti Kar Tripathi
(Expert) 07 December 2010
I agree with Burman. The section 60(i) of CPC is is clear in this regard, which runs as under
Provided that the following particulars shall not be liable to such attachment or sale, namely:-
(a) -----------------
(b)-----------
(c)---------
(d)------------
(e) ----------------
(f) ------------
(g)--------------
(h)-------------
i) salary to the extent of8[the first one thousand rupees] and two third of the remainder] in execution of any decree other than a decree for maintenance
Provided that where any part of such portion of the salary as is liable to attachment has been under attachment, whether continuously or intermittently, for a total period of twenty-four months, such portion shall be exempt from attachment until the expiry of a further period of twelve months, and, where such attachment has been made in execution of one and the same decree, shall, after the attachment has continued for a total period of twenty-four months, be finally exempt from attachment in execution of that decree.
(ia) one-third of the salary in execution of any decree for maintenance
Thus the circular if any is against the aforesaid provision and can be challenged by filing writ.
