Amount recovered for alimony-court attachment
sanjeev kumar
(Querist) 28 April 2013
This query is : Resolved
D/Friends,
Rs. 17000/- is being recovered from my monthly salary as a maintenance for my advocate wife.Now under the influence of Bar Association,bcoz she practises in the same court,the Judge has convicted me one year simple imprisonment in 498A.My department has placed me under suspension.Can the department impose on me the penality of removal/dismissal as per CCS(CCA) Rules.If unluckily it happens,I have no source of income.In that case,will the court of law follow some another way to recover alimony from me.If yes,what steps should I take at this stage to avoid further complications.
with regards
498A suferrer
prabhakar singh
(Expert) 28 April 2013
Let the time come to consider about.Why are you so anxious about adversities.
sanjeev kumar
(Querist) 28 April 2013
D/Sir,
A 15 days Show Cause Notice is served to me for further disciplinary proceedings after suspension.
ajay sethi
(Expert) 28 April 2013
have you challenged order of conviction ?any stay grante d in appeal ?
Nadeem Qureshi
(Expert) 28 April 2013
Dear Querist
you have right to file a criminal appeal against this conviction and a civil appeal against the alimony order before appellate court.
Nadeem Qureshi
(Expert) 28 April 2013
Dear Querist
as per order 21 rule 48 and 48A of CPC
48. Attachment of salary or allowances of servant of the Government or railway company or local authority
(1) Where the property to be attached is the salary or allowances of a 1[servant of the Government] or of a servant of a railway company or local authority 2[or of a servant of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act, or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956)] the Court, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court’s jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and, upon notice of the order to such officer as 3[the appropriate Government may by notification in the Official Gazette] appoint 4[in this behalf,-
(a) where such salary or allowances are to be disbursed within the local limits to which this Code for the time being extends, the officer or other person whose duty it is to disburse the same shall withhold and remits to the Court the amount due under the order, or the monthly instalments, as the case may be;
(b) where such salary or allowances are to be disbursed beyond the said limits, the officer or other person within those limits whose duty it is to instruct the disbursing authority regarding the amount of the salary or allowances to the disbursed shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be, and shall direct the disbursing authority to reduce the aggregate of the amounts from time to time, to be disbursed by the aggregate of the amounts from time to time remitted to the Courts.
(2) Where the attachable proportion of such salary or allowances is already being withheld and remitted to a Court in pursuance of a previous and unsatisfied order of attachment, the officer appointed by the appropriate Government in this behalf shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
5[(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2) shall, without further notice or other process, bind the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, while the judgment-debtor is within the local limits to which this Code for the time being extends and while he is beyond those limits, if he is in receipt of any salary or allowances payable out of the Consolidated Fund of India or the Consolidated Fund of the State or the funds of a railway company or local authority or corporation or Government company in India; and the appropriate Government or the railway company or local authority or corporation or Government company, as the case may be, shall be liable for any sum paid in contravention of the rule.]
6[Explanation.-In this rule, "appropriate Government" means,-
(i) as respects any person in the service of the Central Government, or any servant of a railway administration or of a cantonment authority or of the port authority of a major port, or any servant of a corporation engaged in any trade or industry which is established by Central Act, or any servant of a Government company in which any part of the share capital is held by the Central Government or by more than one State Governments or partly by the Central Government and partly by one or more State Governments, the Central Government;
(ii) as respects any other servant of the Government, or a servant of any other local or other authority, or any servant of a corporation engaged in any trade or industry which is established by a Provincial or State Act, or a servant of any other Government company, the State Government.]
HIGH COURT AMENDMENTS
Andhra Pradesh.- Same as in Madras.
Madras.-In Order XXI, in rule 48, in sub-rule (1), in clause (a), at the end, insert the words “such amount or instalment being calculated to the nearest anna by factions of an anna or six pies and over being considered as one anna and omitting amounts less than six pies”.
[Vide ROC No. 1310 of 1926.]
1. Subs. by Act 5 of 1943, sec. 3, for “public officer”.
2. Ins. by Act. No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).
3. Subs. by Act 25 of 1942, sec. 3 and Sch. II, for certain words.
4. Subs. by Act 26 of 1939, sec. 2, for certain words.
5. Subs. by Act 104 of 1976, sec. 72, for sub-rule (3) (w.e.f. 1-2-1977).
6. Subs. by Act No. 104 of 1976 for Explanation (w.e.f. 1-2-1977).
1[48A. Attachment of salary or allowances of private employees
(1) Where the property to be attached is the salary or allowances of an employee other than an employee to whom rule 48 applies, the Court, where the disbursing officer of the employee is within the local limits of the Court's jurisdiction, may order that the amount shall, subject to the provisions of section 60, be withheld from such salary or allowances either in one payment or by monthly instalments as the Court may direct; and upon notice of the order to such disbursing officer, such disbursing officer shall remit to the Court the amount due under the order, or the monthly instalments, as the case may be.
(2) Where the attachable portion of such salary or allowances is already being withheld or remitted to the Court in pursuance of a previous and unsatisfied order of attachment, the disbursing officer shall forthwith return the subsequent order to the Court issuing it with a full statement of all the particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in accordance with the provisions of sub-rule (2), shall, without further notice or other process, bind the employer v/hile the judgment-debtors is within the local limits to which this Code for the time being extents and while he is beyond those limits, if he is in receipt of salary or allowances payable out of the funds of an employer in any part of India; and the employer shall be liable for any sum paid in contravention of this rule.]
Guest
(Expert) 28 April 2013
Dear Sanjeev,
Your suspension is deemed suspension from the date you are in the police or judicial custody, as the department was bound to suspend you as per the statutory provisions of the CCS (CCA) Rules. The department is also bound to take necessary disciplinary action on your being prosecuted by the court of law.
However, you should feel lucky that the department has not invoked the provisions of Rule 19 of the CCS (CCA) Rules, as according to that Rule, the disciplinary authority has the discretion even to dismiss you without holding a departmental inquiry. But here, if the disciplinary authority has issued you a charge sheet under the provisions of Rule 14, he seriously wants to give you a chance to defend yourself before awarding any punishment.
In fact, from your story, it reveals as if your advocate wife is simply interested in your dismissal more than the alimony or maintenance charges. Even if you are jobless, her ego can be satisfied by seeing you jobless rather than getting the maintenance charges for her. Being advocate she would be knowing fully well that on your becoming jobless you would not have any income to pay the maintenance charges amd also the attachment of pay would have no meaning when you get dismissed.
YOU NEED TO REMEMBER ONE IMPORTANT THING that subsistence allowance paid during suspension period is exempt from court attachment. Only salary part can be attached. So, make sure from your DDO that the amount of court attachment is not recovered out of your subsistence allowance.
sanjeev kumar
(Querist) 29 April 2013
D/Fellows,
If the ASJ allows my appeal application and acquits me in 498A,in that case will the deptt. reinstate me or further wait for the decision of High Court if another party approaches HC?What CCS(CCA) says?
Adv. Chandrasekhar
(Expert) 29 April 2013
In my view, you have to take the following steps:
1. Move the appellate court (sessions court), if not already moved, to quash the conviction order and also have to move the stay application against the conviction. Once, stay is granted -
2. Move the appropriate application before the disciplinary authority filing the stay order and appraising the situation, seek the abeyance of discplinary proceedings till disposal of your appeal before the sessions court.
3. If you get the relief before the disciplinary authority, it is well and good. Otherwise participate in displinary proceedings and contest the case on merits.
4. Maintenance of Rs.17,000/- might have been fixed on the basis of your gross salary. If so, move the fresh application before the same magistrate court for reducing the maintenance, as you are getting only subsistence allowance as you are under suspension. You will go for an appeal, if you do not get positive result before the trial court.
5. Once you get stay in appeal in S. 498-A case, move transfer application before the High Court to transfer the case from this district to some other district, as you have apprehensions that she being a bar member is influencing the judicial decisions.
Guest
(Expert) 29 April 2013
Your honourable acquital any time by the appellate court would tend to entitle you reinstatement to your post with the period of even suspension to be treated as duty period.
