1. The short facts are that the petitioner was working as cleaner with the Forest Department of the State Government. On 18.7.1990, on account of firing from the rifle of the Forest Department of the Government, one boy lost his life. The criminal case was registered against the petitioner and thereafter the petitioner has been acquitted by the Criminal Court. It further appears that since the petitioner was arrested in connection with the Criminal Case, he was placed under suspension from 18.7.1990. During the period from 4.8.1990 to 4.5.1991, the petitioner was taken back in service and he was also paid regular wages. As per the respondents, the DFO, Gir, Junagadh took back the petitioner in service during the aforesaid period unknowingly or otherwise and when it came to the notice of the higher officer, the petitioner was again placed under suspension. Ultimately, in criminal case for the offence under Section 302 of IPC read with Section 25(1)(a) of Arms Act, the petitioner was acquitted, but in the departmental inquiry, the proceedings continued. In the departmental proceedings, ultimately vide order dated 29.6.2001 (Annexure-B), it was found that on account of the negligence, the Government had to pay the amount and, therefore, the period from 18.7.1990 to 3.8.1997 was ordered to be treated as under suspension. The petitioner preferred appeal against the said decision and the said appeal vide order dated 23.11.2001 came to be dismissed. It may also be recorded that pending the departmental proceedings, by order dated 4.5.1991 when the petitioner was placed again under suspension, it was ordered that the recovery shall be made of the duty pay for the period from 4.8.1990 till 4.5.1991. Under these circumstances, the petitioner has approached this Court by making prayer in two-fold way; one is that the order passed in the departmental proceedings dated 29.6.2001 (Annexure-B) and its confirmation thereof vide order dated 23.11.2001 be set aside and the second aspect of the prayer is to quash and set aside the order dated 4.5.1991 (Annexure-E), whereby the recovery was affected of duty pay from 4.8.1990 to 4.5.1991.
2. On behalf of the respondent, Mr.L.J. Parmar, Assistant Conservator of Forest has filed the affidavit-in-reply and at paragraphs 6 to 9, it has been stated as under:-
“6. I say that in pursuance of the order passed by the present petitioner with effect from 18.7.90 till 3.8.97, the petitioner was kept under suspension but in between period the DFO, Gir Junagadh perhaps unknowingly or otherwise took him back in the employment and as a result of the said action on part of the DFO, Junagadh, the petitioner came to be continued with the Department for the period commencing from 4.8.90 to 4.5.91.
7. I say that thereafter on realizing the fact that the petitioner was wrongly taken back in the employment further order came to be passed suspending him from service and that order has continued thereafter till 3.8.97.
8. I say that though in view of the order came to be passed by the Civil Court in Civil Suit No.22/93 by Jt. Civil Judge (S.D.), Amreli, the present petitioner was asked to pay compensation/damage to the parents of the deceased and accordingly as per the order of the Court at the instance of the present petitioner. The payment has been made with a condition that the payment which has been made by the Department is required to be recovered from the petitioner. I say that therefore an appropriate order for recovery are to be passed in view of the payment made by the Department on behalf of the petitioner.
9. I say that the petitioner was under suspension because he was detained in jail for 48 hours in between period commencing from 18.7.90 to 3.8.91. The petitioner was taken back in the employment and he was paid full salary for the said period but subsequently the entire period was treated as suspension period and therefore the difference of salary to the tune of 50% excess payment made by mistake is ordered to be recovered from the petitioner. I say that the said order is also legal and proper because the entire period is treated as suspension period till the year 1997 by the Department and the administrative error is rectified by the Department. I say that the said order came to be passed under the Provision of BCSR.”
3. The aforesaid shows that the order dated 4.5.191 was passed, but thereafter again the order was passed on 4.9.1991, whereby the petitioner was placed under suspension as directed vide order dated 4.5.1991. If the facts stated are considered in light of the averments made by the petitioner in paragraph 6, it appears as per the petitioner that he actually worked from 4.8.1990 to 31.8.1991 as if he was reinstated in service or as if continued in service and the actual suspension is effected after the order dated 4.9.1991 only on 31.8.1991. The respondents have not submitted reply on the said aspect. Therefore, it would come to the situation that the petitioner has worked on full-time basis from 4.8.1990 until again placed under suspension as per the order dated 4.9.1991. The recovery has been effected for the aforesaid period of the full pay and it is ordered that he shall be treated as under suspension.
4. It is in light of the aforesaid fact situation contention raised and the prayers made are to be considered.
5. It is true that if a person has worked and the salary has been paid to him and subsequently it comes to the notice that the person was not entitled for service or any higher pay-scale has been paid, the department cannot recover the amount excess paid to him and the position of law is settled. However, in the present case the facts are slightly different; one is that the order for recovery of the amount came to be passed on 4.5.1991 and the recovery was already effected when the departmental proceedings were concluded vide order dated 29.6.2001 (Annexure- B). In the departmental proceedings, it is found by the disciplinary authority that on account of negligence on the part of the petitioner, State Government is required to pay the amount of Rs.60,537/- and, therefore, ultimately the order has been passed that since the Government is made to suffer and pay the amount of Rs.60,537/-, he should be treated as under suspension from 18.7.1990 i.e. the date on which he was arrested until 3.8.1997 i.e. the period during which he remained under suspension, since the petitioner has been reinstated in service in 1997.
6. However, the pertinent aspect is that at the time when the aforesaid order dated 29.6.2001 came to be passed, the recovery for the period during which the petitioner was to be placed under suspension, though he actually worked and was paid full salary was already effected. It also appears that in the order dated 29.6.2001, the competent authority has considered the aspect that it is on account of the negligence by the petitioner for carrying loaded-revolver, the compensation was ordered by the Civil Court of Rs.1,21,074/-, out of which the Government had to pay the amount of Rs.60,537/- and the remaining amount is to be paid in equal instalments by the petitioner as well as by police constable, Khimabhai Jagmalbhai. Even in the proceedings of the appellate authority dated 23.11.2001, in the order, there is a reference to the agreement on the part of the petitioner with the other person to pay the amount in instalments. It is under these circumstances, the order has been passed by the competent authority for treating the period from 18.7.1992 to 3.8.1997 as under suspension.
7. The first aspect for examination for the challenge to the order at Annexure-B and its confirmation at Annexure-A is concerned, the power is vested to the competent authority to decide as to whether the period during which the petitioner remained under suspension should be regularized or not. It is not that in every case whenever the order for acquittal has been passed by the Criminal Court, the disciplinary authority has to drop the departmental proceedings or otherwise. It would depend on facts to facts of each case and the competent authority would be required to examine the evidence available on record and thereafter has to pass the order for regularization of the period of suspension or not and then to decide as to whether such period shall be treated as on duty or shall be treated as under suspension. In my view, even if the Criminal Court has acquitted the petitioner for the offence under Section 302 of IPC read with Section 25(1)(a) of the Arms Act, taking into consideration that the State Government has been saddled with the financial liability of Rs.60,537/- and the circumstances on the part of the petitioner to pay the remaining amount in equal instalments with Police Constable, Khimabhai Jagmalbhai, it cannot be said that the discretion vested with the competent authority to regularize the period of suspension has been arbitrarily exercised or there is any perverse exercise of the power by the competent authority while passing the order at Annexure-B and its confirmation thereof by the appellant authority at Annexure-A. In the result, challenge to the order dated 29.6.2001 at Annexure-B and its confirmation thereof vide order dated 23.11.2001 at Annexure-A fails.
8. However, even if both the orders are taken as it is, the resultant effect would be that the period from 18.7.1990 to 3.8.1997 should be treated as under suspension. Therefore, the consequence would be that the petitioner during the said period would not be entitled to the difference of salary between the subsistence allowance and the regular pay for the period from 18.7.1990 to 3.8.1997. It appears that both the authorities lost site of the aspect that while treating the petitioner as under suspension from 18.7.1990 to 3.8.1997, the petitioner has actually worked from 4.8.1990 till he was again placed under suspension pursuant to the order dated 4.9.1991. The aforesaid period is such, which may slightly stand on a different footing and consideration, inasmuch as during the said period, though he was required to be continued under suspension, but he actually worked as if reinstated and he was paid full salary during the said period. It appears that pending the aforesaid proceedings vide order dated 4.5.1991 (Annexure-E), the recovery was ordered to be effected for the full salary paid to him as against the subsistence allowance as permissible in law and the said recovery was already effected pending the conclusion of the departmental proceedings for regularization of the period under suspension. It appears from the affidavit-in-reply on behalf of the respondent referred to herein above, that as per the respondent, DFO, Gir, Junagadh, perhaps unknowingly or otherwise, took back the petitioner in employment and the petitioner was continued in service from 4.8.1990 onwards, which as per the petitioner, is up to 31.8.1991.
Therefore, it was on account of the aforesaid action taken by the higher officer of the petitioner namely; DFO, Gir, Junagadh as per the department, the mistake has been corrected and the recovery was ordered. There is no attribution of any fraud or misrepresentation by the petitioner in the affidavit-in-reply filed on behalf of the respondent, nor there is any stand taken or averment made in the affidavit-in- reply that the petitioner made any misrepresentation or played any fraud, which led the DFO, Gir, Junagadh to take him back in service. Therefore, the effect would be that it is on account of the mistake of the department or the superior, the petitioner was taken back in service and he actually worked from 4.8.1990 to 31.8.191 and the salary was also paid to him during the said period. It is this salary or rather the difference in the salary in comparison to the availability of the subsistence allowance in accordance with law, which is recovered by the impugned order dated 4.5.1991. There is no denial on the part of the respondent that such amount of difference is not recovered. At this stage, the reference may be made to the decision of the Apex Court in case of Syed Abdul Qadir and Others Vs. State of Bihar and Others, reported in (2009) 3 SCC, 475, wherein the Apex Court at paragraph 57 has observed thus:-
“57. This Court, in a catena of decisions, has granted relief against recovery of excess payment of emoluments/allowances if (a) the excess amount was not paid on account of any misrepresentation or fraud on the part of the employee, and (b) if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous.”
9. If the facts of the present case are considered in light of the above referred legal position, as there is no misrepresentation or fraud attributed to the petitioner and as it appears from the record that it is on account of the mistake by the department, the petitioner was taken back in service and worked during the aforesaid period from 4.8.1990 to 31.8.1991 and was also paid full salary, the order for recovery cannot be sustained in eye of law.
10. Examining the matter from a different angle, it is not the order of the competent authority at Annexure-B or at Annexure-A of the competent authority that recovery already effected during the aforesaid period is to be treated as appropriation of the amount towards the loss sustained by the Government by way of compensation. Both the orders makes it abundantly clear that the period from 18.7.1990 to 31.8.1997 be treated as under suspension. If the period is to be treated as under suspension, the petitioner, in any case, would be entitled to the subsistence allowance during the said period and such period would also include the period in question i.e. 4.8.1990 to 31.8.1991 as may be permissible in law. However, so far as the difference between the full salary paid to the petitioner during the aforesaid period on account of actually working on duty and the available subsistence allowance during the aforesaid period, in view of the aforesaid settled legal position could not be effected and if the recovery is already made of the difference, the same would be rendered illegal and consequentially the respondent would be required to refund the said amount of difference, more particularly because there is no express order passed for appropriation of the difference of the amount already paid as full timer and the eligible subsistence allowance from 4.8.1990 to 31.8.1991. Under these circumstances, it appears that the petitioner would be entitled to refund of the amount to that extent, which the respondent would be required to make.
11. In view of the aforesaid observations and discussion, the order dated 29.6.2001 – Annexure- B and its confirmation thereof as per the order dated 23.11.2001 – Annexure-A is not interfered with for the purpose of treating the period from 18.7.1990 to 3.8.1997 as under suspension, but with the further clarification and direction that the amount of the salary from 4.8.1990 to 31.8.1991 minus the eligible subsistence allowance during the said period, if any, shall not be recoverable. Consequently, the petitioner would be entitled to refund of the amount of the salary minus the subsistence allowance for the period from 4.8.1990 to 31.8.1991. The respondent shall calculate the amount and pay the amount to the petitioner within a period of three months from the date of receipt of the order of this Court.
12. The petition is partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. Direct service is permitted.
(Jayant Patel, J.) vinod