This appeal challenges an order dismissing a writ petition. The High Court held that the appellant's remedy lies in raising objections regarding the attachment of funds in the executing court, as the attachment itself is not void under the Payment of Gratuity Act.
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1 16.08.2023 D.Hira Court No. 12
In The High Court At Calcutta Civil Appellate Jurisdiction Appellate Side
MAT 182 of 2017 With CAN 1 of 2017 (Old No. CAN 1901 of 2017)
Shamsunessa Versus Union of India & Ors.
Md. Salahuddin, Md. Ahsanuzzaman, Md. Raziuddin. … for the appellant
No representation for the respondents.
Heard Mr. Md. Salahuddin, learned counsel appearing
for the appellant.
The appellant’s husband was an employee under the Kolkata Port Trust and died on 11.12.2000. According to the appellant, the respondents granted family pension and also released all the retiral benefits but withheld an amount of Rs.50,000/-. When the appellant demanded to release the said amount the respondents informed the appellant that the said amount will be released in due course but failed to do so.
Hence, the appellant filed the writ petition being W.P. No. 21065 (W) of 2009.
Before the learned Single Judge, learned counsel appearing for the respondents submitted that in the three execution cases the total sum of Rs.69,257/- were attached and the Port Trust has made over the said amount to the
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said Court and also submitted that no other amount is due and payable by the Port Trust to the appellant.
Accepting the case of the respondent no. 1/Kolkata Port Trust, by the order dated 22nd December, 2016 the learned Single Judge dismissed the writ petition.
Challenging the said order the appellant has come out with the present appeal.
Learned counsel appearing for the appellant contended that the suit itself is not maintainble and bad in law and the same was filed after death of the employee.
As per Section 13 of the Payment of Gratuity Act, 1972, the gratuity amount payable to the employee cannot be attached by any order and prayed for setting aside the order of the learned Judge and prayed for a direction to the respondent to pay the amount.
From the materials on record, it is seen that in all the three execution proceedings filed against the husband of the appellant a sum of Rs.69,257/- were attached and the respondent no. 2/{Port Trust has made over the said amount into the said Court.
As per Section 13 of the Payment of Gratuity Act, 1972, the gratuity payable to the employee cannot be attached.
In the present case, there is an order of attachment in the three execution cases.
It is the contention of the learned counsel appearing for the appellant is that the appellant came to know the execution proceedings only after filing the affidavit-inopposition by the respondent in the writ proceedings. Even after coming to know of the execution proceedings, the
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appellant has not approached the Court which ordered attachment to raise the said attachment and also for payment of the amount in the Court deposit by the Port Trust, till date.
In view of the same, the remedy available to the appellant is to approach the Court, which ordered attachment and raise all the objections now raised before this Court, for suitable order for getting redressal.
For the above reasons, the appeal fails and dismissed.
Urgent Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.
(V.M. Velumani, J.)
(Rai Chattopadhyay, J.)
3 issues framed by the court
Whether the gratuity amount attached in execution proceedings cannot be detached under Section 13 of the Payment of Gratuity Act, 1972.
Whether the appellant's remedy lies in approaching the court that ordered attachment rather than filing a fresh writ appeal.
Whether the present appeal succeeds given the appellant's failure to raise objections in earlier proceedings.
1 provisions across 1 enactments
Shamsunessa
Union of India
V.M. Velumani
Rai Chattopadhyay
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
