AMARESHWAR SAHAY, J. - (1.) IN this writ petition, the prayer of the petitioner is for quashing Memo No. 2635 dated 04.06.2003 (ANNEXURE -3) issued under the signature of the Superintendent, Birsa Munda Central Jail, Ranchi, whereunder, the Treasury Officer, Saran, Chapra, was directed to recover a sum of Rs.41,804/ -from the amount of gratuity payable to the petitioner. Further prayer of the petitioner is for direction to the respondents to pay Rs.41,804/ -which was illegally deducted from the amount of gratuity pursuant to Annexure -3 and also for payment of salary for the period November, 2002 to 03.01.2003 i.e. the period during which the petitioner had actually worked.
(2.) THE case of the petitioner is that he was appointed as a Constable on 01.08.1971 and was posted at Hazaribagh in Central Jail. He retired from service on 31.05.2003 while posted in Birsa Munda Central Jail, at Ranchi. Though as per the entry made in his Service Book about his age, he was to retire from service on 31.05.2002 after completing the age of superannuation but he was not retired and he continued to perform his duty. It is said that the petitioner continued to work till 03.01.2003 and thereafter, by order no. 62, dated 03.01.2003, he was superannuated from service w.e.f. 31.05.2003 vide Annexure -1 to the writ petition. The grievance of the petitioner is that though he worked from 01.06.2002 to 03.01.2003, but no salary was paid to him for the months of November and December, 2002. According to the petitioner, he was paid his retiral dues but subsequently, by issued of Memo No. 2635 dated 04.07.2003, the Superintendent, Birsa Munda Central Jail wrote to the Treasury Officer, Chapra, Bihar, the place from which the petitioner was getting his pension, directing to adjust Rs.41,804/ -from the amount of gratuity payable to him. Pursuant thereto, the said amount was recovered from the amount of gratuity of the petitioner till October, 2002. It is submitted on behalf of the petitioner that he continued in service not on his misrepresentation of any kind but because of the oversight on the part of the respondents. The aforesaid amount was illegally ordered to be recovered from the gratuity of the petitioner though admittedly, the petitioner performed his duty for that period he was paid salary till he continued in service. 2008(1) JCR 5 (Jhr.)(FB), no amount can be recovered from the pensionary benefits including gratuity of a retired employee except by an order passed under Section 43(B) of the Bihar/Jharkhand Pension Rules.
(3.) THE respondent no. 3 - Superintendent of Bihar Munda Central Jail, Ranchi, by filing a counter affidavit has stated that according to the entries in the service book, the date of birth of the petitioner was 18.05.1944 on the basis of which, he should have retired on 31.05.2002 but he concealed this fact and he never informed about his date of retirement which was ultimately detected on 03.01.2003 and accordingly, the respondent no. 3 passed the order as contained in Annexure -1 to the writ petition. It has further been stated in the said counter affidavit that as per the direction of the Accountant General, Jharkhand, the Treasury Officer, Chapra was informed to recover the amount of Rs.41,804/ -from the gratuity of the petitioner.;