C.W.P. No.17478 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. DATE OF DECISION : 1.2.1011 1. C.W.P. No.17478 of 2010 Constable Ram Phal and another v. State of Haryana and others. 2. C.W.P. No.17471 of 2010 Dharam Pal and another v. State of Haryana and others. 3. C.W.P. No.17507 of 2010 Anoop Singh v. State of Haryana and others. 4. C.W.P. No.17565 of 2010 Krishan Kumar and another v. State of Haryana and others. 5. C.W.P. No.17581 of 2010 Kartar Singh Constable and another v. State of Haryana and others. 6. C.W.P. No.17582 of 2010 Constable Karambir Singh and another v. State of Haryana and others. 7. C.W.P. No.17586 of 2010 Constable Jagbir Singh and others v. State of Haryana and others. 8. C.W.P. No.17600 of 2010 Constable Satpal and others v. State of Haryana and others. CORAM : HON'BLE MR.JUSTICE MAHESH GROVER C.W.P. No.17478 of 2010 -2- Present:- Shri Sanjiv Gupta, Advocate for the petitioners. Shri Sunil Nehra, Senior D.A.G. Haryana. --- MAHESH GROVER, J. This order will dispose of C.W.P. Nos.17478, 17471, 17507, 17565,17581, 17582, 17586 and 17600 of 2010. For the sake of convenience, brief facts have been taken from C.W.P. No.17478 of 2010. The petitioners were appointed as Constables in District Police, Jind in the year 1989. They were discharged from service on 3.10.1991 on account of their participation in police agitation in the State of Haryana. Numerous writ petitions were filed assailing the action of the respondent/State of Haryana, out of which one was C.W.P. No.670 of 1992, in which this Court passed the following order :- “Consequently, the writ petitions C.W.P. Nos.670,686,688, 687,689 and 5763 of 1992 and 16689 of 1991 are allowed and the impugned orders quashed. In view of the relief granted to the petitioner in jagdish Chander's case (supra) and the judgment of the constitutional Bench of the Supreme Court in Managing Director, ECIL, Hyderabad v. B.Karunakar 1993 (5) SLR 532, the petitioners presently are not entitled to be reinstated into service. Instead they will be deemed to be continuing under suspension. It shall be open to the respondents to hold enquiry against the petitioners in accordance with law and pass fresh orders within six months C.W.P. No.17478 of 2010 -3- from the date of receipt of orders of this Court. The petitioners shall not be entitled to salary or other monetary benefits between the date of their dismissal and the date of this order. As to what treatment should be meted to the period of their suspension shall be decided by the disciplinary authority at the time of passing of fresh orders. No costs.” The L.P.A. against the said order was also dismissed. The petitioners thereafter faced enquiry and were also held guilty. They were acquitted and awarded the punishment of censure against which they filed an appeal. They were however, reinstated in service on 19.7.1997 by passing the following order :- “Following constables who were placed under suspension w.e.f. 16.10.1995 are hereby reinstated w.e.f. 19.7.1997 without prejudice to the outcome of result of case FIR No.445 dated 2.10.1991 u/s 147/148/109/341/34 I.P.C. P.S.City Jind pending against them as approved by the Deputy Inspector General of Police, Hissar Range, Hissar vide his office letter No.13026/A-2 dated 18.7.97.” The petitioners then filed C.W.P. No.1058 of 1998 pleading that they be given the monetary benefits on account of their being treated as under suspension. This writ petition was disposed of by observing as follows :- “We may indicate here that no order has been produced before us as to how the period of suspension from July 13, 1995 till reinstatement is to be treated and to what emoluments, if any, the petitioners would be entitled to during the period of suspension. The respondents are at liberty to C.W.P. No.17478 of 2010 -4- pass such orders in accordance with law. However, in this case we are only holding that the petitioners are entitled atleast to the suspension allowance, as calculated above, between the period from July 14, 1995 till reinstatement and to the full pay after reinstatement, as calculated above. Let these directions be carried out within a period of four months and the arrears be released accordingly.” During this interregnum period, the petitioners were acquitted of the criminal charge against them and in the appeal preferred by them against the order of censure also, they were exonerated. It was held that the period of suspension from 3.10.1991 to 13.7.1995 shall be treated as period spent on duty and on the basis of this order, they were granted the entire benefits. The immediate cause of grievance of the petitioners is the show cause notice issued on 16.7.2009 whereby they have been called upon to show as to why the recovery of pay/amount be not made for the period ranging from 3.10.1991 to 13.7.1995 and the benefits granted for this period were contrary to the directions of the Division Bench given in C.W.P. No.1058 of 1998 and which has been extracted above. Learned counsel for the petitioners contends that once the petitioners have been acquitted of the criminal charge and in the departmental proceedings also they have been exonerated and a specific order to that effect has been passed that this period would be considered to be the period spent on duty, they were rightfully given the monetary benefits, the consequent recovery which is sought to be effected from them by issuance of the impugned notice, is totally contrary to law, arbitrary and violative of the directions given by this Court in the earlier writ petitions which have been referred to in the foregoing paragraphs. C.W.P. No.17478 of 2010 -5- The stand of the respondent/State is that it was a sheer mistake committed by them and by oversight, the directions of the Division Bench came to be ignored while passing the order by them. Attention of this Court has been drawn to the directions given by the Division Bench which in the concluding paragraphs, specifically limited the benefit of the suspension allowance between the period from 14.7.1995 till the reinstatement and to the full pay after the reinstatement, as per the calculations, the mode of which has been given in the Division Bench judgment of this Court. I have heard the learned counsel for the parties and perused the material on record. I am not inclined to accept the prayer of the petitioners for the simple reason that the Division Bench judgment limited their claim to the suspension allowance between the period from 14.7.1995 till reinstatement. Prior thereto, a Single Bench of this Court had also said that “the petitioners shall not be entitled to salary or other monetary benefits pending the date of their dismissal and the date of this order. As to what treatment should be given to the period of their suspension, shall be decided by the disciplinary authority by passing a fresh order. Whatever limited ambiguity was pointed out by the petitioners in the subsequent writ petitions, was rectified by the Division Bench. While parting with the judgment, the Division Bench limited the claim of the petitioners for suspension allowance for the period from 14.7.1995 till reinstatement. Thus, even a cursory glance of the observations made by the Division Bench leaves no room for doubt that the claim of the petitioners was inhibited to a certain period and the error which has occurred, has now been rectified. Learned counsel for the petitioners then placed reliance on the observations made by the Full Bench of this Court in Budh Ram and others v. State of Haryana and others 2009(3) S.C.T. 333 to contend that no recovery can C.W.P. No.17478 of 2010 -6- be effected from the petitioners in the absence of any misrepresentation made by them to the respondents. It would thus, be important to advert to para-12 of the judgment of the Full Bench which is extracted here below :- “12. Apart from cases that fall in categories (i) and (ii) above, there is one conceivable situation in which an employee may even when he is not guilty of mis-representation, fraud, deception or the like receive, under a mistake of any functionary of the State, an amount which he has no reason to either receive or appropriate. For instance and purely on a hypothetical plane, there may be a case where an employee of the State Government or the instrumentality of the State receives an amount with his salary that is wholly disproportionate, unexpected or inexplicable. An employee whose monthly emoluments are, for instance Rs.20000/- receives in a given month, a sum of Rs.30000/- instead of Rs.20000/-. Such a payment may be purely accidental and erroneous arising out of an un-intended mistake. The question is whether the employee has any obligation to verify the reason or the genesis of the windfall that he has received and to refund the same, if he is not lawfully entitled to the same. Our answer to this is in the affirmative. Such a case may not fall in category (i) as the employee has not committed any mistake but it is not a case that would fall in category (ii) either as the benefit is unrelated to any erroneous interpretation or application of rule. It is a case whereby reason of sheer neglect of a functionary of the State Government, a payment that is undeserved and wholly C.W.P. No.17478 of 2010 -7- uncalled for is made to the employee. Such a case cannot be equated with those falling in category (ii). Such a case may be dealt with independently and the employee concerned called upon to refund to the Government the undeserved payment that he has received. We say so because in our opinion, once the undeserved payment came to his notice, every employee is under an obligation to verify the reason for the same and act in a manner that is fair and equitable. Appropriation of a payment which the employee had no reason to expect or accept would in such a case be dishonest. And one who is dishonest cannot take shelter behind equity. We cannot for obvious reasons exhaustively enumerate situations where such payments are received and can be lawfully recovered. All that we propose to point out is that while generality of the cases would fall in category (i) and (ii), some freak cases like the one in category (iii) that we have been able to conceive, may need to be dealt with independently depending upon whether the employee can be attributed the knolwledge that the payment was undeserved and whether the duty to verify the factual position and refund the amount when the same came to his notice could be read into his duty as an employee of the State or its instrumentalities.” From a perusal of the aforesaid observations, it becomes abundantly clear that there is no impediment in the way of the authorities to rectify an error and enforce its consequences. For the aforesaid reasons, I am of the opinion that the writ petitions C.W.P. No.17478 of 2010 -8- filed by the present petitioners seeking stalling of the rectification of the impugned order started by the respondents is totally misconceived and the petitions being without any merit, are dismissed. (MAHESH GROVER) February 1, 2011 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO