IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.224 of 2009 1. THE UNION OF INDIA through The General Manager, Eastern Railway, Fairlie Place, Kolkatta. 2. Senior Divisional Personnel Officer, Eastern Railway, Asansol, West Bengal. …. Petitioners. Versus 1. SHARWAN KUMAR@SARWAN KUMAR, son of Late Ram Nagina Singh, resident of village- Rajpur, Mainpura, Police Station- Patliputra, District- Patna. Petitioner… Opposite party 1st Set. 2. Smt. Prem Devi @ Prema Devi wife of Sharwan Kumar and daughter of Baijnath Ram, resident of village Rajapur, Mainpura Near Masjid Gali, Police Station- Patliputra, Town and District- Patna, presently residing at Daldali Road, Gabhtal, Post Office Danapur Cantonment, Police Station- Danapur, District- Patna. Opposite party.. Opposite party 2nd Set. ----------- 3. 16.12.2009 Heard Mr. Devendra Kumar Sinha, learned senior counsel for the petitioner on the plea of limitation seeking condonation of delay of nine months and ten days. For the reasons mentioned in I. A. No. 5226 of 2009 the delay in filing this Civil Review Application is condoned. Reverting now to the merits of this case this Court finds that a prayer has been made for review of the order dated 26.9.2008 passed in C. R. No. 1181 of 2006 only to the extent that the order passed by this court directing the competent authority of the Railways to recover the amount for its being paid to the wife of one Sharwan Kumar, a retired employee of Railways, is contrary to 2 the Rules 15 and 16 of Railway Service Pension Rules (hereinafter referred to as the Rules). In order to appreciate this part of submission it has to be noted that this Court in its order dated 26.9.2008 while dealing this aspect had passed the following order:- “ …….At the outset, Mr. Pushkar Narayan Shahi, learned counsel appearing on behalf of the petitioner informs this Court that the petitioner in compliance of the earlier order of this Court dated 5.9.2008 has not appeared and in fact he has been given no instruction by him ever since he left the Court premises on 5.9.2008 itself. The wife-opposite party is present and has stated that immediately after leaving the Court premises, the petitioner did not accompany her nor did he make any effort to live together with her on or after 5.9.2008. Under such circumstances this Court must record that the petitioner had an attempt to mislead this court by creating an impressions through his counsel in course of his oral submissions on an earlier occasion, as has been noted in the order of this Court dated 26.8.2008 had taken the following stand- “At this stage, Mr. Pushkar Narain Sahi, Counsel appearing on behalf of the petitioner renews his offer as has already been given in paragraph no.7 to its affidavit that the petitioner 3 is ready to keep the opposite party as his wife in a dignified manner and also extend all sort of protection and patronage to his children. Considering the facts and circumstances of this case, this Court would direct both the petitioner and the opposite party to appear before this Court on 5th of September, 2008 at 4.15 Pm in Chambers.” As a matter of fact this Court had literally believed the following words of the petitioner as specifically stated by him in ground no. IV in this Civil Revision applications : - “For that the court below ought to have also taken into consideration the consistent case and stand of the petitioner that he is ready and willing to keep the opposite party and the children. In fact, when on the next day i.e. 5th of September, 2008, the petitioner had appeared and had given certain assurances in continuation to his aforesaid quoted statement before this Court in the civil revision application, this Court had also recorded the same which now becomes relevant and is quoted hereinbelow:- “Reference may be taken to the earlier orders of this Court dated 12.8.2008 and 26.8.2008 respectively. Pursuant thereto, both the petitioner and his wife, the opposite party have appeared in person along with their Counsel. Mr. Pushkar 4 Narain Shahi, learned Counsel appearing on behalf of the petitioner on the earlier occasions was correct in his analysis that there was a chance of settlement if the Court intervened. Today, after a hectic effort of almost forty-five minutes, this much has emerged, that the husband and the wife who were earlier staying separately and on account of such separation, the impugned order came to be passed by way of monthly maintenance, have now agreed to make a fresh attempt to restore their old conjugal life relationship. In view of the statement that has been given by the husband, wife and their eldest son, this Court is of the view that four adult members can still co-exist together under one roof. The parties i.e. the husband and wife have agreed that henceforth the husband will stay with the wife in the rented house in which the wife along with her two sons are living. It has been further agreed that the husband, petitioner who has taken voluntary retirement from service of Indian Railway, will discharge his obligation both as a father and a husband towards his wife and two sons, who are still dependent on their parents. The opposite party, wife, who is also ready to forgive and forget her past experience has also come out with a proposal that she has a piece of land on which if a separate house is constructed, there would be an outright chance for their living together 5 without any disturbance and uncalled for interference from the other family members either of the side of the husband or from her own side. As a matter of fact, during their statement before this court, both of them have more or less expressed similarly reservations arising out of some frustrating experience shared by them primarily on account of crude behavior of the family members of both the sides and therefore, it was suggested that the family of four i.e. the husband, wife and two sons should stay separately for some time. The construction of the house on the plot owned by the wife from the amount that has been received by the husband by way of one time settlement of his voluntary retirement as suggested by both the petitioner husband and the wife opposite party is only sought to be achieved with this end insight. All these oral statements, however need to be reduced in writing in the form of a compromise petition duly affidavited by both husband and wife. This Court, however is of the opinion that before such compromise takes effect, it would be necessary for the husband petitioner to prove his bonafide by depositing a sum of Rs. one lac in fixed deposit either with a nationalized bank or any post- office in the joint name (in the name of the petitioner and his wife) with a clear instruction and undertaking to the said bank/post-office that 6 it will be jointly operated and will not be withdrawn under the single signature of either of them. After making such fixed deposit as explained, the compromise petition may be filed enclosing a photocopy of such certificate of fixed deposit. Pending filing of such a compromise petition upon depositing of a sum of rupees one lac as indicated above, the husband and wife must start living together from today itself and thereafter, file an affidavit to this effect along with compromise petition within a period of two weeks from today so that further order can be passed by this court on the basis of proposed compromise petition. List this case on 26th of September, 2008 on which date, both the husband and wife again shall remain personally present at 4.15 in Chambers.” Now when the counsel for the petitioner has himself conceded that the petitioner is not prepared to keep his wife and children with him, it becomes clear that a wholly false and irresponsible statement was made by him (petitioner) in the civil revision application only for the purposes of assailing the impugned order. In the background of the aforementioned facts, this Court is constrained to hold that the petitioner had made an attempt to mislead this Court and the civil revision application questioning the impugned order as with regard to the payment of monthly maintenance of his wife and children is fit to be dismissed on this ground alone. 7 This Court however, has also heard Mr. Shahi, counsel for the petitioner on merit who has highlighted only two aspects while assailing the impugned order. His first submission is that the Court below has committed an apparent error in not considering the income of the wife-opposite party while fixing the amount of maintenance of Rs. 5,000/- per month. In the opinion of this Court, such submissions are wholly misconceived. Not only the Court below has gone into the issue of income of the wife but even before this Court in presence of the petitioner the wife had shown her document to establish that she was not employed in any service rather she was occasionally engaged in the Home-guards and in token of services rendered, she was paid some remuneration on daily wages. It was also explained to this Court by the wife-opposite party that such engagement some time in a month was for a week but there were also several months in which such engagement was not available to her. Nothing was brought on record by the counsel for the petitioner to contradict this position. That being so, this Court must hold that the wife-opposite party has no independent source of her regular income from which she can maintain herself as also the dependent children. The second and the last submission taken by Mr. Sahi is with regard to the shrunken resources of income for the petitioner on account of his retirement from service. Mr. Shahi submits that the petitioner is now no longer in service and therefore, is not in a position to pay a sum of Rs. 5,000/- per month as has been directed by the Court below in 8 the impugned order. This submission is also fit to be rejected for the reasons namely the petitioner, when he had appeared in person before this Court, had himself admitted that at the time of his seeking voluntary retirement, he was paid certain amount in the form of provident fund, gratuity, leave encashment and salary pay under the voluntary retirement scheme prevailing in the Indian Railway. He had also informed this Court that his salary from retrospective date would become revisable in terms of the implementation of the revised pay scale with effect from 1.1.2006. That being so, when the petitioner is regularly receiving his monthly pension and has also received consolidated lump sum payment by way of his retirement benefit, it cannot be said that the petitioner cannot pay a sum of Rs. 5,000/- per month as directed by the Court below in the impugned order. No other submissions have been made by the learned counsel for the petitioner as against the impugned order. That being so, it must be held that the impugned order which sets out the detailed reasons for fixing an amount of Rs. 5,000/- per month by way of monthly maintenance, is not vitiated by any jurisdictional error. A sum of Rs. 5,000/- per month for maintaining three persons, wife and two children, cannot even otherwise be said to be either excessive or unreasonable especially when the reasonings given by the Court below for directing payment of Rs. 5,000/- in the impugned order is not vitiated by any material irregularity and/or is perverse. This Court while exercising its power under Section 19(4) of the Family Court Act, in a proceeding arising out of Section 125 of the 9 Cr.P.C., akin to the powers under Section 115 of the C.P.C., cannot be expected to go into the correctness of the findings of facts as recorded in the impugned order. In that view of the matter, this civil revision application is fit to be dismissed even on merits and it is ordered accordingly. The petitioner on his own showing has not paid the entire amount as directed in the impugned order of the Court below and therefore, this Court would direct the employer of the petitioner namely the authorities of the Indian Railway in general and the Divisional Personnel Officer, Eastern Railway, Asansol, West Bengal in particular to realize the entire amount of arrears at the rate of Rs. 5,000/- w.e.f. 21.6.2006. The competent authorities therefore, would be under compulsion to make recovery of the admissible amount payable to the wife-opposite party in terms of the order of the Court below dated 21.6.2006 in Maintenance Case No. 100(M) of 1997 and any arrear of amount barring pension will be paid to the petitioner only after making recovery of the amount payable to the wife-opposite party under the impugned order. It is further directed that till such realization of arrear and current amount of maintenance is made, the petitioner will not be paid beyond 50% of his monthly pension and the remaining entire amount payable to the petitioner will be first utilized for liquidating the dues of the wife-opposite party in terms of the impugned order. Disobedience of any part of this order by the authorities of the Indian Railway would amount to contempt of this Court…….” 10 The said order thus was aimed to secure the amount of maintenance granted by the court below under Section 125 Cr.P.C. in a case filed by opposite party no. 2 in 1997 and when it was found that the husband, opposite party no. 1 in a long protracted course of nine years and again till three years of disposal of the proceeding had not paid the amount as determined and directed by the court below, this Court while approving and upholding the impugned order had gone to pass an order for recovery of such amount from the known source of income of the opposite party no. 1 to save the life of the destitute wife having liability of three children deserted by the cruel husband opposite party no. 1. Such order is well within the scope of section 125 and 126 of the Code which itself envisages the modalities of recovery of the amount of maintenance. Such sanguine provision under Section 125 Cr.P.C. cannot be whittled down by the Service Rules including Pension Rules inasmuch as the same seeks to achieve the object of ensuring fundamental right to life guaranteed to every citizen under Article 21 11 of the Constitution of India. In this background when the scope of Rules 15 and 16 referred to and relied by the learned counsel for the Railways and its authority, petitioner of this application is examined it becomes clear that their operation by restriction is confined only to recovery and for adjustment of Government or railways dues. To make this aspect clear, it would be useful to quote the relevant Rules 15 and 16 in extenso which reads as follows:- “15. Recovery and adjustment of Government or railway dues from pensionary benefits.- 1. It shall be the duty of the Head of Office to ascertain and assess Government or Railway dues payable by a railway servant due for retirement. 2. The railway or Government dues as ascertained and assessed, which remain outstanding till the date of retirement or death of the railway servant, shall be adjusted against the amount of the retirement gratuity or death gratuity or terminal gratuity and recovery of the dues against the retiring railway servant shall be regulated in accordance with the provisions of sub-rule(4). (3)For the purposes of this rule, the expression railway or Government dues” includes- (a) dues pertaining to railway or Government accommodation including arrears of Hence fee, if any: 12 (b) dues other than those pertaining to railway or Government accommodation, namely balance of house- building or conveyance or any other advance, overpayment of pay and allowances, leave salary or other dues such as Post Office or Life Insurance premia, losses (including short collection in freight charges shortage in stores) caused to the Government or the railway as a result if negligence or fraud on the part of the railway servant while he was in service. 4(i) A claim against the railway servant may be account of all or any of the following:- (a) losses (including short collection in freight charges, shortage in stores) caused to the Government or the railway as a result of negligence or fraud on the part of the railway servant while he was in service. (b) other Government dues such as over-payment on account of pay and allowances or other dues such as house rent, Post Office or Life Insurance Premia, or outstanding advance. (C) non-Government dues. (ii) Recovery of losses specified in sub-clause (a) clause (i) of this sub-rule shall be made subject to the conditions laid down in rule 8 being satisfied from recurring pensions and also commuted value thereof, which are governed by the Pensions Act, 1971 (23 of …). A recovery on account of item (a) of sub para (i) which cannot be made in terms of rule 8, and any 13 recovery on account of sub-clauses items (b) and (c) of clause (i) that cannot be made from these even with the consent of the railway servant, the same shall be recovered from retirement, death, terminal or service gratuity which are not subject to the Pensions Act, 1871 (23 of 1871). It is permissible to make recovery of Government dues from the retirement, death, terminal or service gratuity even without obtaining his consent, or without obtaining the consent of the members of his family in the case of a deceased railway servant. (iii) Sanction to pensionary benefits shall not be delayed pending recovery of any outstanding Government dues. If at the time of sanction, any dues remain unassessed or unrealized the following courses should be adopted:- (a) In respect of the dues as mentioned in sub-clause (a) of clause (i) of this sub-rule. A suitable case deposit may be taken from the railway servant or only such portion of the gratuity as may be considered sufficient, may be held over till the outstanding dues are assessed and adjusted. (b) In respect if the dues as mentioned in sub-clause (b) of clause (i) of this sub-rule (1). The retiring railway servant may be asked to furnish a surety of a suitable permanent railway servant. If the surety furnished by him is found acceptable, the payment of his pension or gratuity or his last claim for pay, etc. should not be withheld and the surety shall sign a bond in Form 2. (2) if the retiring railway servant is unable or not willing to furnish 14 a surety, then action shall be taken as specified in sub-clause (a) of sub-clause (iii). (3) The authority sanctioning pension in each case shall be competent to accept the surety bond in Form 2 on behalf of the President. (c) In respect of the dues as mentioned in sub-clause (C) of clause (i) The quasi- Government and non-Government dues, such as amounts payable by a railway servant to Consumer Cooperative Societies, Consumer Credit Societies or the dues payable to an autonomous organization by a railway servant while on deputation may be recovered from the retirement gratuity which has become payable to the retiring railway servant provided he gives his consent for doing so in writing to the administration. (iv) In all cases referred to in sub-clauses (a) and (b) of clause (i) of this sub-rule, the amounts which the retiring railway servants are required to deposit or those which are withheld from the gratuity payable to them shall not be disproportionately large and that such amounts are not withheld or the sureties furnished are not bound over for unduly long periods. To achieve this the following principles should be observed by all the concerned authorities:- (a) The cash deposit to be taken or the amount of gratuity to be withheld should not exceed the estimated amount of the outstanding dues plus twenty-five per centum thereof. (b) Dues mentioned in clause (i) of this sub-rule should be assessed and adjusted within a period of three months from 15 the date of retirement of the railway servant concerned. (c) Steps should be taken to see that there is no loss to Government on account of negligence on the part of the officials concerned while intimating and processing of a demand. The officials concerned shall be liable to disciplinary action in not assessing the Government dues in time and the question whether the recovery of the irrecoverable amount shall be waived or the recovery made from the officials held responsible for not assessing the Government dues in time should be considered on merits. (d) As soon as proceedings of the nature referred to in rule 8 are instituted, the authority which instituted the proceedings should without delay intimate the fact to the Accounts Officer. 16. Adjustment and Recovery of dues pertaining to Government or railway accommodation.- (1) The Directorate of Estates on receipt of intimation from the Head of Office under sub-rule (1) or rule 98 regarding the issue of “No Demand Certificate” shall scrutinize its records and inform the Head of Office eight months before the date of retirement of the allottee, if any licence fee was recoverable from him in respect of the period prior to eight months of his retirement. If no intimation in regard to recovery of outstanding licence free is received by the Head of Office by the stipulated date, it shall be presumed the no licence fee was recoverable from the allottee in respect of the period preceding 16 eight months of his retirement. 2. The Head of Office shall ensure that licence fee for the next eight months, that is up to the date of retirement of the allottee is recovered every month from the pay and allowances of the allottee. 3. Where the Directorate of Estate intimates the amount of licence fee recoverable in respect of the period mentioned in sub-rule (1), the Head of Office shall ensure that outstanding licence fee is recovered in instalments from the current pay and allowances of the allotee and where the entire amount is not recovered from the pay and allowances, the balance shall be recovered out of the gratuity before its payment is authorized. 4. The Directorate of Estates shall also inform the Head of Office the amount of licence fee for the retention of Government Accommodation for the permissible period of four months beyond the date of retirement of the allottee. The Head of Office shall adjust the amount of that licence fee from the amount of the gratuity together with the unrecovered licence fee, if any, mentioned in sub-rule (3). (5) If in any particular case, it is not possible for the Directorate of Estates to determine the outstanding licence fee, that Directorate shall inform the Head of Office that ten per cent of the gratuity or one thousand rupees, whichever is less, may be withheld pending receipt of further information. (6) The recovery of licence fee for the occupation of the Government accommodation beyond the permissible period of four months after the date of retirement if allottee shall be the responsibility of the 17 Directorate of Estates. Any amount becoming due on account of licence fee for retention of Government accommodation beyond four months after retirement and remaining unpaid licence fee may be recovered by the Directorate of Estates through the concerned Accounts Officer from the dearness relief without the consent of the pensioner. In such cases no dearness relief should be disbursed until full recovery of such dues have been made. Note: For the purpose of this rule, the licence fee shall also include any other charges payable by the allottee for any damage or loss caused by him to the accommodation or its fittings. 7. A railway