MAHIPAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE Petitioner has prayed for the issuance of a writ in the nature of Certiorari for quashing the order dated 16th January, 2007 (Annexure P -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 Manda -mus directing the Respondents to release the retiral benefits from the date of retirement alongwith 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 31st March, 2003. He has submitted that for the first time, - - vide letter No. 533 -35/6E, dated 31st March, 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 20th June, 1939 to 20th June, 1949. In response to the said letter, the Petitioner submitted a reply, whereafter a departmental enquiry was initiated against him wherein it was held that there is an over -writing/ cutting in the date of birth as 20th June, 1949 in place of 20th'June, 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 dale 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 reffered from service with effect from 31st March, 2003 but he was deemed to have been relieved with effect from 30th June, 1999 on having attained the age of 60 years as per his actual date of birth i.e. 20th June, 1939. While passing the order dated 20th January, 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 1st July, 1999 to 31st March, 2003 was ordered to be deducted from the retiral benefits of the Petitioner on the ground that he was to actually retire on 30th June, 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 beneits.

(3.) WE have heard counsel for the parties and with their able assisance have gone through the records of the case. It is true that in the departmental enquiry, it has been concluded that there is an overwriting/cutting in the date of birth of the Petitioner as 20th June, 1949 in place of 20th June, 1939 which reveals that the service book of the Petitioner has been tampered with. It is also true that this entry would have benefitted the petitioiner alone and no one else. The Photocopy of the servie 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.