C.W.P No. 2948 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 2948 of 2008 Date of decision : January 28, 2009 Sher Singh ...... Petitioner (s) v. State of Haryana and others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. B.K.Bagri, Advocate for the petitioner. Mr.Harish Rathee, Sr. DAG Haryana for the respondents. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) The petitioner was initially appointed as Beldar on daily wages in the year 1973 in the PWD (B&R) department. His services were regularised in the year 1994. At that time his date of birth was entered as 11.1.1955 on the basis of an affidavit sworn by him. A complaint was thereafter received that he had under-stated his age. He was sent for medical examination where, on the basis of the reports of the Radiologist and the Dental Surgeon, his age was determined to be approximately 50 years meaning thereby his year of birth would be 1945 and not 1955. The C.W.P No. 2948 of 2008 ::2:: petitioner also gave an affidavit after the age clarification that in fact his year of birth was 1945 and not 1955. Consequently, he was to retire in 2005. However, notwithstanding the determination of his age in 1995 itself he was allowed to continue for a period of 11 months and was retired on 26.10.2006 w.e.f 31.10.2005 (as per the age verification). The petitioner challenged the order of his retirement before this Court by way of CWP No.17148 of 2006, which was dismissed on 26.3.2007. Thereafter, while releasing his superannuation benefits, salary for the extra period was deducted. It is this action which is challenged in this writ petition. The contention of counsel for the petitioner is two fold. Firstly, the recovery was made without holding any inquiry into the culpability of the petitioner in working beyond his date of retirement. Secondly, in any case, since real facts were before the respondents in the year 1995 itself, the petitioner's continuance beyond 2005 could not be his fault and, therefore, he could not be deprived of the salary for the period he actually discharged duties. In my opinion, the impugned order cannot sustain on the basic ground that the same has been passed without holding any kind of inquiry. It goes without saying that no deduction can be made from retiral benefits of an employee without serving him any notice of any charges which may be levelled against him and without holding any inquiry into the matter. Consequently, this writ petition is allowed and the order dated 4.8.2007 (Annexure P-6) imposing recovery on the petitioner is set aside. However, liberty is granted to the respondents to initiate proceedings for recovery, in accordance with law. They will also take into consideration the C.W.P No. 2948 of 2008 ::3:: question regarding continuance of the petitioner in service, keeping in view the fact that correct information was already before them. Since this is a matter relating to retiral benefits, the respondents are directed to provisionally release the recovered amount against security to be furnished by the petitioner to the satisfaction of respondent No.4 so that in case after inquiry, recovery has to be made, he shall refund the amount. ( AJAY TEWARI ) January 28, 2009. JUDGE `kk'