Smt. Sipra Mukherjee vs The State of West Bengal and Others

Hon''ble Mr. Justice Jayanta Kumar Biswas

The petitioner in this WP under art. 226 dated May 5, 2010 is seeking a mandamus commanding the respondents to pay her with interest Rs.43, 477 deducted from her husband''s retirement benefits towards recovery of overpaid salary. The petitioner''s husband was a secondary school teacher. On reaching the age of superannuation he retired from the service on December 31, 2005. The office of the Director of Pension, Provident Fund and Group Insurance, West Bengal issued the Pension Payment Order (in short PPO) on August 27, 2007 granting him pension from January 1, 2006, but deducting of Rs.43, 477 overpaid salary from the gratuity amount.

The teacher accepted the PPO without any protest. He died on June 23, 2009. After his death the petitioner, like hundreds of others, moved a WP No.2821 (W) of 2010 before this Court under art.226 claiming interest for delay in payment of gratuity to her husband. By an order dated February 11, 2010 the WP was disposed of directing the respondents therein to pay the petitioner 10% p.a. interest on the amount of gratuity.

The order dated February 11, 2010 was accepted by the respondents in the WP No.2821(W) of 2010. But after the order dated February 11, 2010 was passed, the petitioner brought this WP dated May 5, 2010 seeking a mandamus commanding the respondents to pay her the amount shown in the PPO as deducted from her husband''s retirement benefits towards recovery of salary overpaid to him.

Mr. Sengupta appearing for the State has taken preliminary objections that the issue involved in the WP is barred by the principles of constructive res judicata; and that, in any case, the petitioner is not entitled to claim the deducted amount, when her husband, the affected person, accepted the recovery of the overpaid salary.

Mr. Das appearing for the petitioner has submitted that since the previous WP was only for interest on gratuity, this WP involving the recovery of the overpaid salary cannot be hit by the principles of constructive res judicata; and that since the allegation of wrong pay fixation resulting in the salary overpayment has affected the petitioner''s family pension, she is entitled to question it, even though her deceased husband never questioned it.

In spite of direction of this Court, the respondents have not filed any Affidavit-in-Opposition (in short AO). But then the preliminary objections are to be, and can be, decided on the basis of the case stated in the WP and the documents produced therewith. Hence I do not think absence of the AO is of any consequence.

By the pay refixation and the recovery of the overpaid salary only the teacher could feel aggrieved. That he did not question the pay refixation and the consequent recovery of overpaid salary is sufficient to draw a conclusion that he did not feel aggrieved by the refixation and the recovery. Once he accepted the things, in my opinion, the petitioner cannot question them saying that they have affected her family pension amount.

In any case, the petitioner limiting her claim in her previous WP only to interest for delay in payment of gratuity, when she had knowledge of the pay refixation and the recovery of the overpaid salary and could question their validity therein, in my opinion, was not entitled to file this WP. If aggrieved, she ought to have questioned them in the previous WP. The issues are hit by the principles of constructive res judicata For these reasons, the WP is dismissed. No costs. Certified xerox.