Calcutta High Court (Appellete Side)
Siddhartha Sankar Bairagi vs The State Of West Bengal And Ors on 16 August, 2022
16.08.2022
Court No.13
Item No.688
AP
WPA 12343 of 2022
Siddhartha Sankar Bairagi
Vs.
The State of West Bengal and Ors.
Mr. Sakti Pada Jana
... For the Petitioner.
Mr. Md. Mansoor Alam
... For the State.
Affidavit-of-service filed in Court today is taken
on record.
In the present case the writ petitioner is
aggrieved by the order of deduction of the overdrawn
amount of a sum of Rs.2,56,701/- after his
retirement. The writ petitioner was an Executive
Assistant of Mathurabagan Gram Panchayet who
retired from service on 31st July 2020 and the
pension was paid by the authorities 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.
v. 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 judgement of a co-ordinate Bench of this court
in the case of Shiba Rani Maity v. The State of West
Bengal in W.P. No. 29979 (W) of 2016 as well as
Biswanath Ghosh v. The State of West Bengal in W.P.
No. 27562 (W) of 2016 has categorically held that in a
case where no rights have accrued in favour of a third
party, the petitioner who has suffered by reason of
non-payment of amount withheld on the grounds of
an alleged overdrawal has a right to approach this
court for appropriate relief. The relevant paragraphs
from WP No. 29979 (W) of 2016 are set out 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 judgment 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 spite
of the delay if it does not affect the right of third
parties."
It is clear from the above that a Writ of
Mandamus is prayed for is maintainable in the facts
of the present case.
I accordingly direct the concerned treasury
officer to release the amount of Rs.2,56,701/- to the
petitioner along with interest @ 8% per annum with
effect from the date of issuance of the pension
payment order. Such payment is to be made to the
petitioner within a period of six 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 issued on 01.03.2021.
With the aforesaid directions, the instant writ
petition is disposed of.
Since no affidavit has been called for, all
allegations made in the writ petition are deemed not
to have been admitted.
Urgent certified website copy of this order, if
applied for, be made available to the petitioner upon
compliance with the requisite formalities.
(Rajasekhar Mantha, J.)
