Jayanta Kumar Biswas, J. - (1.) 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.
(2.) 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.
(3.) 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.;