D.N.PATEL, J. - (1.) PRESENT writ petition has been preferred for challenging the order passed by the respondent no. 2 at Annexure -1 dated 9th October, 2009, whereby, the salary for the period of July 2009 to September 2009 is ordered to be recovered from the present petitioner.
(2.) Learned counsel for the petitioner submitted that the petitioner was working as Warder at Central Jail, Hazaribagh. The petitioner was appointed on 31st August, 1973. The service book of the petitioner was in possession of the respondents and they are maintaining the same. For no fault of the petitioner and without any misrepresentation or fraud played by the petitioner, he was continued in the services from July 2009 to September 2009 and, thereafter, the services of the petitioner were brought to an end because he was ordered to be retired. The petitioner has worked up to September 2009 and, therefore, he was also paid salary for the month of July 2009 to September 2009, which has been ordered to be recovered by the respondents at Annexure -1 dated 9th October, 2009. This order has been passed without giving any notice to the petitioner and without giving any opportunity of being heard to the petitioner. Moreover looking to the impugned order at Annexure -1, it appears that there is no allegation upon the petitioner that he has misrepresented the case or he has played fraud with the Government. The respondents are never giving copy of the service book to the petitioner or employee. The petitioner has worked with full knowledge of the superior hierarchy of the respondents. Accountant etc. are preparing pay bills and it is being sanctioned by other high ranking officers. The salary has been paid to the petitioner for the period already worked by him and, therefore, the salary cannot be ordered to be recovered from the petitioner after his retirement. Moreover, learned counsel for the petitioner has relied upon the decisions reported in, 2003 (1) PUR 9 :, 2001 (1) JCR 175 : 2001 (2) JCR 185 :, 2008 (4) JCR 142 and, 2009 (3) JCR 455 and pointed out that once the salary or any amount is paid to the petitioner, who is an employee of the State and if there is no misrepresentation or fraud played by such employee or the petitioner. the amount cannot be recovered at the later stage. In the facts of the present case, impugned order has been passed without giving any notice, otherwise, all these facts and law would have been come to the respondents and, hence, the order at Annexure -1 deserves to be quashed and set aside. Learned counsel for the petitioner also submitted that looking to Rules 288 and 289 of the Jharkhand Service Code, it appears that the service book is prepared, maintained and preserved by the respondents. Even, the respondent -State is not giving copy of the service book to the petitioner. Looking to the provisions under Rule 288 to be read with Rule 289 of the Jharkhand Service Code, it appears that even after retirement, the respondents are not giving original of the service book to the petitioner. The petitioner has to apply for certified copy and that too after retirement only, he can get the same. Thus, there is no mistake lies on the part of the petitioner because every knowledge is vested with the respondents about the date of retirement of the petitioner. In fact, the State should supply copy of the entry made in the service book to its employees at the end of every financial year so that the employee may know if there is any mistake on the pan of the State in the entries made by the respondents because it happens in several cases that there may be erroneous entry in the service book and the State is never showing the service book to its employees for several years together. Once mistake happens, it continues for several years and sometimes up to retirement and when employees are preferring application for correction, then it is not allowed because such application is preferred at the fag end of their career. To avoid this type of situation also, a copy of the service book should be given to the employees at the end of every financial year by payment of some token or actual cost.
(3.) LEARNED counsel for the respondents vehemently submitted that the petitioner was appointed on 31st August, 1973. No birth date was given by the petitioner and as per service book, he was aged about 24 years as on such date. Thus, after 60 years of his age, the petitioner was to retire on 30th June, 2009. Instead of retirement, the petitioner has continued in the service up to September 2009 and, therefore, there is order of recovery of salary, which was ahead paid to the petitioner, on or from July 2009 to September 2009. by the impugned order at Annexure -1.;