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High Court Of Delhi
JAIDIP SINGH SANDHU - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ 1144 of 1994
Decided On : 05/08/1995
Section 90(i) — Direction given by the Government to make payment of maintenance to the wife and children of army personnel out of his emoluments — Order passed after due opportunity of hearing to the army personnel — No interference with the order is called for.
Based on the provided legal document, the key legal principles and considerations are as follows:
Power of the Central Government under Army Act: The government has the authority to order the deduction of maintenance payments from the pay and allowances of an army personnel without the necessity of a court decree, provided that the order is passed after giving the army personnel a reasonable opportunity of hearing (!) (!) .
Scope of Section 90(i): The provision allows the government to make deductions for maintenance independently of any civil court order. The legislative intent is to prevent hardship to the wife and children by enabling the government to exercise this power even when civil proceedings are pending or have not yet resulted in a decree (!) (!) .
Interpretation of Notes and Regulations: The notes below Section 90(i), particularly Note 22, clarify that deductions should generally be made to give effect to a civil court decree. However, these notes are interpretative guides and do not impose an absolute precondition. The legislative policy supports exercising the power even in the absence of a decree, especially to prevent hardship (!) (!) (!) .
Relationship with Other Laws: The provisions of Sections 25, 28, and 33 of the Army Act establish that deductions from pay are to be made solely by the government and that pay and allowances are immune from attachment by civil or revenue courts unless specific statutory provisions or decrees are involved. These sections aim to preserve the integrity of military pay and prevent attachment by civil courts (!) (!) (!) .
Rights of the Wife and Children: The rights to maintenance under other laws (e.g., Hindu Marriage Act, Hindu Adoptions and Maintenance Act) are preserved and can be exercised through civil courts or via the government under Section 90. The government’s power to deduct is an independent mechanism that does not require a prior civil court decree (!) (!) .
Procedural Safeguards: The process includes issuing a show cause notice, providing the army personnel an opportunity to respond, and ensuring that the decision is made fairly and reasonably. The order of deduction is subject to review and must be based on proper verification and consideration of all relevant facts (!) (!) (!) .
Limitations and Safeguards: The deduction should not exceed the prescribed limits (e.g., 33% of pay and allowances) and should be proportionate to the needs and circumstances of the dependants. The process involves verification of the claim, calling for relevant information, and ensuring that the rights of the army personnel are protected (!) (!) .
Immunity from attachment and attachment procedures: Salary not yet drawn is not movable property and cannot be attached under certain civil procedures. The regulations provide specific procedures for attachment and the steps that the Defence Accounts should take to oppose or revise such orders (!) (!) (!) .
In summary, the legal framework supports the government's authority to order maintenance deductions from army personnel's pay independently of civil court decrees, provided procedural fairness is maintained. The rights of the army personnel are protected through opportunities to be heard and verification processes, and the deductions are subject to statutory limits and safeguards.
( 1 ) THE petitioner has moved this petition for quashing the Central Government order dated 1st Septem- hcr,1995 granting maintenance to petitioner s wife and minor child. The Government of India passed an order on 1st September, 1993 granting maintenance to the petitioner s wife and his son of Rs. 1280. 00 and Rs. 320. 00 respectively from September, 1993, totalling Rs. 1600. 00 per month. The compensation was awarded in exercise of the powers conferred under Section 90 (i) of the Army Act 1950 (46 of 1950 ). The order reads as follows:
"to The Chief of the Army Staff, New Delhi.
SUBJECT : Grant of Maintenance Allowance to Smt. Seema Sandhu wife of IC-41377y Capt. J. S. Sandhu, 10 Armd. Regt.
IN exercise of the powers conferred under Section 90 (1) of the Army Act 1950 (46/1950) I am directed to convey the sanction of the President to the recovery of Rs. 1600. 00 per month (Rupees one thousand and six hundred only) (Rs. 1280. 00 for wife and Rs. 320. 00 for her son) commencing from September,1933 (i. e. from the emoluments of August 1993 onwards) from the pay and allowances of IC -41377y Capt J. S. Sandhu of 10 Armd Regt for maintenance of his wife and a male child.
2. The maintenance allowance will be remitted to the lady till her marriage with the officer subsists and in respect of minor son it will be remitted till he attains the age of majority.
3. The amount as and when recovered will be remilted at the expense of the officer direct to Smt. Seema Sandhu, w/o Capt. J. S. Sandhu, H-6, Vikas Puri, New Delhi-18 or any other address she may intimate from time to time.
YOURS faithfully,
( 2 ) THIS order is impugned in the writ petition impleading as respondents, the Union of India and other authorities and his wife.
( 3 ) THE petitioner argued the case in person and submilled that in view of the later part of Note 22 referable to Section 90 (i) of the Army Act, the power under Section 90 cannot be exercised for deducting maintainance for petitioner s wife and son unless the wife and son obtain a decree for maintenance from a competent Civil Court.
( 4 ) THE petitioner contended that this conclusion followed from Section 33 of the Army Act which says that the rights and privileges of the army personnel granted here are in addition to those covered by any other law, here, the Hindu Adoptions and Maintenance Acl,1956 or Hindu Marriage Act,1955. The petitioner also REFERRED TO Section 28 of the Act which provides immunity from attachment of salary by direction of any civil or revenue court or any revenue officer in respect of pay and allowances of any person subject to the Army Act. Though section 25 of the Act permits deductions to be made as ordered by or under the Act or any other Act, petitioner contends that no deductions can he made from pay and allowances in view of provisions of Section 28 and 33 of the Act, unless there is a decree or order of the Court, It is contended that the later part of Note 22 below Section 90 (i) requires that unless a decree is passed by a competent civil court, no deductions can be made. Reference is also made to. Regulation 532 of Service Regulations issued under the authority of Government of India and it is contended that salary is not moveable property within the meaning of Section 421 of the Cr. P. C. and that it cannot be attached.
( 5 ) IN order to get at the relevant rules and regulations applicable to the case, we requested Shri B. P. Ojha, Advocate to assist us as Amicus Curiac and he has given us the necessary and valuable. information and also made his submissions objectively and we are grateful to him.
( 6 ) WE have also heard the learned counsel for the Union of India and Army authorities and the counsel for the wife and son of the petitioner.
( 7 ) THE following points arise for consideration in the writ petition:
(1) Whether the power conferred by the provisions of Section 90 (i) of the Army Acl,1950 for imposing a penal deduction from the pay and allowances of an Army off
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