Calcutta High Court (Appellete Side)
Aklema Khatun vs The State Of West Bengal & Ors on 5 March, 2021
5.3.2021
438,ct.15
sk W.P.A.5592 of 2021
Aklema Khatun
Vs.
The State of West Bengal & Ors.
Ms. Arpita Saha
... For the Petitioner.
No one appears for the State when the matter is
called on for hearing.
Affidavit of service filed in Court today is kept
with the record.
In the present case the wife of the deceased
employee is aggrieved by the order of deduction of the
overdrawn amount of a sum of Rs. 11,450/- after her
husband retirement. The husband of the writ
petitioner was an Assistant Teacher who retired from
service on 31.03.2002 and the pension payment order
was issued on January 8, 2003 after deducting the
aforesaid amount as overdrawn amount. Husband
died on 26.08.2008.
The issue as to whether overdrawal of pay can
be adjusted against retirement dues of an employee
has been settled in the case of Shyam Babu Verma &
Ors.Vs. Union of India & Ors., reported in (1994) 2
SCC521 and also in a later decision in the case of Syed
Abdul Qadir & Ors. V. State of Bihar & Ors. reported
in (2009) 3 SCC 475.
Counsel on behalf of the respondent authorities
submits that there is no considerable delay in
approaching the Writ Court and accordingly, the Writ
Court should not allow such a prayer.
A co-ordinate Bench judgement of this Court in
the Shjiba Rani Maity V. The State of West Bengal in
W.P. 29979(W) of 2016 as well as Biswanath Ghosh V.
The State of West Bengal in W.P. 27562(W) of 2016
has categorically held that in a case where no third
party right accures, the petitioner who has suffered
due to non-payment of the withheld amount on
account of alleged overdrawal has a right to approach
the Writ Court and get relief. The relevant paragraphs
of the judgement are quoted below:-
"(15) The only other question is that whether the writ
petition should be entertained in spite of delay of
about 17 years in approaching this Court. In a
judgment and order dated 6 September, 2010
delivered in MAT 1933 of 2010 passed by a Division
Bench of this Court and held that although the
petitioner had approached the Court after a lapse of
nine years, no third party right had accrued because
of the delay and it was only the petitioner who suffered
due to non-payment of the withheld amount on
account of alleged over-drawal. Accordingly the
Division Bench set aside the order of the Learned
Single Judge by which the writ petition had been
dismissed only on the ground of delay.
(16) Following the Division Bench judgement of this
Court adverted to above, I hold that it is only the
petitioner who suffered by reason of the wrongful
withholding of the aforesaid sum from his retiral
benefits. Although there has been a delay of about17
years in approaching this Court, the same has not
given rise to any third party right and allowing this
writ application is not going to affect the right of any
third party. It may also be noted that the Hon'ble
Apex Court observed in its decision in the case of
Union of India Vs. Tarsem Singh, (2008) 3 SCC 648
that relief may be granted to a writ petitioner in spit of
the delay if it does not affect the right of third parties".
In view of the above judgment, it is clear that a
Writ of mandamus lies in the present facts and
circumstances of this case.
I, accordingly, the respondent authorities to
release the amount of Rs. 11,450/- to the petitioner
along with interest @ 4% per annum with effect from
the date of issuance of the pension payment order,
within a period of eight weeks from the date of
communication of this order.
The petitioner has undertaken before this Court
that he shall not claim any further benefits on account
of the pension that is being paid to him based on the
last drawn pay as per the pension payment order
dated 8.1.2003.
W.P.A.5592 of 2021 is disposed of with the
above directions.
Urgent certified copy of this order, if applied for,
be made available to the parties upon compliance of
the requisite formalities.
(Rajarshi Bharadwaj, J. )
