Calcutta High Court (Appellete Side)
Mira Sinha vs The State West Bengal & Ors on 19 March, 2021
06 19.03.2021. W.P.A. 1601 of 2021
ab
Ct.
15
Mira Sinha Vs The State West Bengal & Ors.
Mr. Sudip Sarkar
... For the Petitioner.
None 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 husband of the
petitioner is aggrieved by the order of deduction of the
overdrawn amount of a sum of Rs 23,484/- after her
husband death. The husband of the writ petitioner was
an Assistant Teacher who died-in-harness on March, 17
2006 and the pension was paid by the authorities on
October 31, 2006 after deducting the aforesaid amount
as overdrawn amount.
The issue 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 SCC
521 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 Shiba 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 accrues, 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 o
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 about
17 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. 23,484/- 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 o the last
drawn pay as per the pension payment order dated
October 31, 2006.
W.P.A. 1601 of 2021 is disposed of with the
above directions.
Since no affidavit has been called for, all
allegations made in the writ petition are deemed to have
been denied.
Urgent certified copy of this order, if applied for,
be made available to the parties upon compliance of the
requisite formalities.
(Rajarshi Bharadwaj, J.)
