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2008 DIGILAW 1726 (PNJ)

Mahi Pal v. State Of Haryana

2008-10-12

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. The petitioner has prayed for the issuance of a writ in the nature of certiorari for quashing the order dated 16.1.2007 (AnnexureP- 3) passed by the Executive Engineer, Pundri Water Services Division, Kaithal whereby his claim for release of retiral benefits has been rejected and for an issuance of a writ in the nature of Mandamus directing the respondents to release the retiral benefits from the date of retirement along with arrears and interest. 2. It is the submission of the petitioner that he was appointed as a Chowkidar in the Irrigation Department on daily wage basis in the year 1977. He contends that he is an illiterate and continued in service till 31.3.2003. He has submitted that for the first time vide tetter No. 53335/6E dated 31.3.2003, the petitioner was informed that there was an over writing/cutting in his date of birth and his date of birth as entered in the service book has been changed from 20.6.1939 to 20.6.1949. In response the said letter, the petitioner submitted a reply whereafter a department enquiry was initiated against him wherein it was held that there is an over writing/ cutting in the date of birth as 20.6.1949 in place of 20.6.1939 which is clearly revealed from his service book, which amounts to tampering with the records. Since the said entry regarding the cutting in the date of birth was only to the benefit of the petitioner and no one else, he was held responsible for the same. The petitioner was accordingly relieved from service with effect from 31.3.2003 but he was deemed to have been relieved with effect from 30.6.1999 on having attained the age of 60 years as per his actual date of birth i.e. 20.6.1939. While passing the order dated 20.1.2006 in compliance with the directions passed by this Court, the Executive Engineer, Pundri Water Services Division, Kaithal passed an order wherein the salary for the period 1.7.1999 to 31.3.2003 was ordered to be deducted from the retiral benefits of the petitioner on the ground that he was to actually retire on 30.6.1999 and therefore, could not have continued in service beyond the said date as he had attained the age of superannuation on the said date. Since the petitioner was not entitled to continue in service, therefore, the salary paid after the said date of retirement deserves to be recovered from him. The petitioner has now challenged this order whereby respondent No. 4 has ordered recovery of salary from his retiral benefits. 3. Upon notice having been issued, the respondents have put in appearance and have defended the order dated 21.1.2006 (Annexure P-3). However, the factual aspect has not been disputed by the respondents. 4. We have heard counsel for the parties and with their able assistance have gone through the records of the case. It is true that in the department enquiry, it has been concluded that there is an overwriting/cutting in the date of birth of the petitioner as 20.6.1949 in place of 20.6.1939 which reveals that the service book of the petitioner has been tempered with. It is also true that this entry would have benefited the petitioner alone and no one else. The photocopy of the service book which has been attached by the respondents along with the reply, reveals that at all places where the signatures of the employee were to be appended, the petitioner put his thumb impression which shows that he is an illiterate person. However, it has not come on record that the tampering was done by the petitioner himself or he had got it done through some other official. Though it is not in dispute that the petitioner was not in custody of the service record, the tampering whereof has been alleged but he cannot be fully exonerated of the responsibility. 5. The records would reveal that the petitioner was to retire on 30.6.1999 and therefore, could not have been continued in service after the said date; however, he continued in service to 31.3.2003 and as a matter of fact, performed the duties as Chowkidar with effect from 1.7.1999 to 31.3.2003. Since he could not have continued in service beyond 30.611999, the date he attained the age of superannuation, he cannot be granted the benefit of the said period towards his pensionary benefits, nor can he be held entitled to the pay which he has otherwise drawn on continuance of the said period of service beyond the period of superannuation. 6. Since he could not have continued in service beyond 30.611999, the date he attained the age of superannuation, he cannot be granted the benefit of the said period towards his pensionary benefits, nor can he be held entitled to the pay which he has otherwise drawn on continuance of the said period of service beyond the period of superannuation. 6. However, since the petitioner is an illiterate person and has worked as Chowkidar, we are of the considered view that he can be compensated for the duties performed by him from 1.7.1999 to 31.3.2003. Thus, it would be in the interest of justice that he be granted the minimum of the pay-scale for the said period and excess payment, if any, made to the petitioner for the said period i.e. 1.7.1999 to 31,3.2003 be recovered from the retiral benefits to be granted to him. The retiral benefits of the petitioner shall be released to him after deducting the excess payment, if any, made to the petitioner treating him to have retired from service with effect from 30.6.1999. Needful be done within a period of three months from the date of receipt of copy of this order. This petition is disposed of accordingly.