dofp2024_00164 — As per FR 54-A(1) which deals with the cases of dismissal, removal or compulsory retirement of a Government servant, when the punishment of dismissal is set aside by a Court of Law and the Government servant is reinstated into service without holding any inquiry, he is required to be paid pay and allowances in accordance with the provisions of sub-Rule 2 or 3 subject to the directions of the court. - No further requirement of submitting any Affidavit as per FR 54-A (1) and (5). Applicant is full

DoFP

As per FR 54-A(1) which deals with the cases of dismissal, removal or compulsory retirement of a Government servant, when the punishment of dismissal is set aside by a Court of Law and the Government servant is reinstated into service without holding any inquiry, he is required to be paid pay and allowances in accordance with the provisions of sub-Rule 2 or 3 subject to the directions of the court. - No further requirement of submitting any Affidavit as per FR 54-A (1) and (5). Applicant is fully covered by the proviso of Rule 54-A (3) — The context is about an Executive Director (Finance) at HUDCO who was removed from service due to disciplinary proceedings, which were later set aside by the Gauhati High Court. The Applicant was rei... — Facts: The Applicant, formerly Executive Director (Finance) at HUDCO, was removed from service on 14-7-2006 following disciplinary proceedings. He contested this decision, leading to a series of litigations. The Gauhati High Court, in its Judgment, dated 6-10-2015 in W.P.(C) No. 1667 of 2014, 6 set aside all disciplinary actions and ordered his reinstatement with all consequential benefits. He rejoined HUDCO on 8-10-2015 but was relieved upon superannuation, on 30-10-2015, subject to the outcome of a pending Supreme Court case. The Supreme Court later upheld the High Court's decision. Following his retirement, he was briefly employed by HUDCO as a Consultant and later as an Adviser. However, HUDCO sought an affidavit of non-employment during his period of removal from service i.e. 14-7-2006 to 1-10-2015 and the Applicant also submitted an undertaking on 6-5-2016 to that effect. Thereafter, the Applicant was paid ₹ 14,77,441 as arrears of salary. However, it was not clarified as to on what basis the amount of ₹ 14,77,441 was arrived at. On 21-3-2017, the HUDCO authorities issued a letter asking the Applicant to furnish another affidavit in a prescribed pro forma for non-employment during the period of his removal from service. The Applicant however informed that the format was meant for serving employees who were placed under suspension and this was not applicable to him and that he had already given a certificate on 6-5-2016 and requested early compliance of the directions of the Hon'ble High Court. This led to legal consultations, with HUDCO's legal advisor and the Additional-Solicitor General ultimately affirming that no additional affidavit was required. Following these legal opinions, HUDCO's management reviewed the case and confirmed that the Applicant was entitled to ₹ 2,19,17,713 as consequential benefits, directing their release per the High Court's judgment. The Applicant faced significant delays in receiving consequential benefits from HUDCO despite a directive from the Chairman. After more than ten months of inaction, the Applicant, sent a legal notice on 24-9-2020, demanding the clearance of benefits within 15 days. Following this notice, HUDCO's Board of Directors convened a meeting to address the matter. The Board acknowledged the delay and agreed to release the benefits as per the judgment of the Gauhati High Court, dated 6-10-2015. However, they resolved to conduct an internal audit before making the final payment. Subsequently, on 22-10-2020, HUDCO credited ₹ 34,51,180 to the Applicant, after deducting ₹ 15,48,820 as tax. Once again, the basis for this calculation was not disclosed, nor was there any clarification on the total amount due from 14-7-2006 to 6-10-2015. After this payment, HUDCO again stalled, and for the next eight months, there was no further communication. On 22-6-2021, the General Manager, HR, HUDCO, sent a letter to the Applicant referencing his 18-2-2019 representation. HUDCO expressed dissatisfaction with the Applicant's undertaking regarding non-employment during his removal period and requested another affidavit. In response, the Applicant sent another legal notice on 23-8-2021, reiterating his compliance and demanding the release of all outstanding benefits per the court order. A note from HUDCO's JGM (HR), dated 17-12-2019 included a break-up of the Applicant's dues, showing a total of ₹ 2,19,17,713. So far, HUDCO had made two lumpsum payments: ₹ 14,77,441 (after tax deduction) and ₹ 34,51,180 (after tax deduction), amounting to a gross sum of ₹ 70,00,000. However, HUDCO did not specify whether these payments were part of the consequential benefits for the removal period or post-retirement benefits. The Applicant argued that HUDCO is liable to pay all due salaries, including applicable increments, for the period from 14-7-2006 to 8-10-2015, along with retirement benefits such as Provident Fund, Gratuity, and Leave Encashment. Despite making some payments, HUDCO had not provided other financial benefits, including the Applicant's monthly pension, which other retired employees receive. The only benefit received was a fixed medical allowance paid every three months. Even though the Chairman, Managing Director, and Board of Directors of HUDCO had approved the payment of consequential benefits based on legal advice from the Additional Solicitor-General of India, HUDCO officials continued to demand an affidavit of non-employment. The Additional Solicitor-General had already clarified that the Applicant's undertaking, dated 6-5-2016 sufficiently addressed HUDCO's concerns. Additionally, the legal opinion stated that FR 53, which applies to suspended employees, was not relevant to the Applicant's case since he had been removed rather than suspended. The principle of law states that when an order of removal is quashed due to illegality, leading to reinstatement, the reinstated employee is entitled to back-wages and increments. These are called consequential benefits. The High Court's judgment quashed the Applicant's removal on legal and substantive grounds, ordering reinstatement with all consequential benefits. While HUDCO reinstated the Applicant, it failed to provide the full benefits he was entitled to. This denial was a continuous legal violation against the Applicant. Moreover, HUDCO also denied the Applicant's rightful retirement benefits, which should have been provided upon the completion of regular service. Since the court ruled his removal as illegal, the period of removal must be considered time spent on duty for determining retirement benefits. Aggrieved by HUDCO's non-compliance, the Applicant filed the present O.A. The Counsel for the Applicant relied upon the following Supreme Court judgments in support of the claim of the Applicant. Allahabad Bank and others v Avtar Bhushan Bhartiya [ (2022) 13 SCC 202 ] M.A. Chowdhury v. Union of India [ 1984 ] O AWC 41/(1983) O Supreme (All.) 286. Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and others [ (2013) 10 SCC ]. Despite the settled law on the subject, HUDCO delayed payments, failed to provide clarity on amounts, and continued to deny the full release of consequential benefits to which he is entitled to. The Respondents contended that in order to implement the Order, dated 6-10-2015 of the High Court, amount of consequential benefit was required to be calculated and for the purpose of said calculation the earnings made by the Applicant herein by virtue of his being gainfully employed either in service, business, profession, vocation for profits etc., during the period of his removal from the services has to be taken into account in terms of the law settled by the Hon'ble Supreme Court of India in the catena of judgments. Thus, the payment of consequential benefits cannot be automatic. Further, the word employment cannot be interpreted in a strict sense of service and even the self-employment or employment in business profession, vocation for profit, wherefrom any earning are made would also come within the ambit of ‘gainful employment'. Therefore, the Applicant herein was advised by the Respondent No. 1 to submit a declaration in the form of affidavit in the format devised by the Respondent in terms of law laid down by the Hon'ble Supreme Court and the Fundamental Rules in this behalf, seeking declaration from Applicant with regard to his employment/non-employment in any service, business, profession, vocation for profit, etc. and the earnings made therefrom during the period of his removal for the purpose of calculation of the amount of consequential benefit which is payable to him in terms of Order, dated 6-10-2015 of Hon'ble High Court at Guwahati. In response to the requirement as aforesaid of the Respondent No. 1, Applicant made reference to the undertaking, dated. 6-5-2016 already submitted by him stating: "that undersigned during the period 14th July, 2006 to 8th October, 2015 i.e. from the date of issue of removal order from HUDCO till reinstatement in service, have not been employed anywhere and requested the Respondent to accept the same in lieu of the declaration in the form specified by the Respondent. As the undertaking submitted by the Applicant did not provide the complete information, as therein he merely stated that he was not employed anywhere instead of declaring that he was not employed in any business, profession, vocation for profit and earnings made therefrom during the aforesaid period of dismissal, thus this undertaking lacks the full disclosure as was required from him. Accordingly, he was again advised to submit the declaration in the form specified by the Respondent. However, despite of several requests to him in this behalf he persisted to continue his stand and did not provide the declaration in the requisite form of affidavit in spite of the fact that in one of his communications i.e. Letter dated 18-2-2019 he did admit that "...I had to find ways and means to sustain myself". It is submitted that the declaration in the form of affidavit, specified by Respondent is in line with the law laid down by the Hon'ble Supreme Court with regard to concept of the 'gainful employment' and adjustment of income derived from such 'gainful employment' for the purpose of calculation of consequential benefit, as referred in Para.(D) above and other similar judgments. Further, the same was not under FR 53(2) but in the spirit thereof and was in consonance with the requirement laid down under FR 54-A(5) which is applicable for the case of dismissal. It is also to submit that the underlying principle under FR 53(2) and 54-A (1) is the same. On reinstatement, an employee should be put to the same position he would have been had the order of his dismissal / removal from the services not been passed. Therefore, any amount earned by the employee during relevant period through any employment i.e. in establishment, business, profession, vocation for profit etc. needs to be adjusted from the amount of 'consequential benefit' payable to the employee to avoid "unjust enrichment" or the employee and the word employment should not be interpreted in the strict sense of service for salary alone. In view thereof i.e. legal position settled by the Hon'ble Supreme Court and to meet the requirement laid down under relevant FR 54-A(5), the Respondent time and again advised the Applicant through various communication to submit the declaration by way of affidavit in the form specified by the Respondent to meet ends of justice; and to enable the Respondent to calculate the amount of ‘consequential benefit' payable to him in terms of the Order, dated 6-10-2015 of the Hon'ble Gauhati High Court. Learned Counsel for the Respondents relied upon the judgment passed by the Hon'ble Apex Court in the case of North East Karnataka Road Transport Corporation v. M. Nagangouda reported in [ 2007 STPL 2429 SC ], as well as Niranjan Cinema v. Prakash Chandra Dubey and another [ (2008) STPL 1638 SC ].

DoFP

As per FR 54-A(1) which deals with the cases of dismissal, removal or compulsory retirement of a Government servant, when the punishment of dismissal is set aside by a Court of Law and the Government servant is reinstated into service without holding any inquiry, he is required to be paid pay and allowances in accordance with the provisions of sub-Rule 2 or 3 subject to the directions of the court. - No further requirement of submitting any Affidavit as per FR 54-A (1) and (5). Applicant is fully covered by the proviso of Rule 54-A (3) — The context is about an Executive Director (Finance) at HUDCO who was removed from service due to disciplinary proceedings, which were later set aside by the Gauhati High Court. The Applicant was rei... — Facts: The Applicant, formerly Executive Director (Finance) at HUDCO, was removed from service on 14-7-2006 following disciplinary proceedings. He contested this decision, leading to a series of litigations. The Gauhati High Court, in its Judgment, dated 6-10-2015 in W.P.(C) No. 1667 of 2014, 6 set aside all disciplinary actions and ordered his reinstatement with all consequential benefits. He rejoined HUDCO on 8-10-2015 but was relieved upon superannuation, on 30-10-2015, subject to the outcome of a pending Supreme Court case. The Supreme Court later upheld the High Court's decision. Following his retirement, he was briefly employed by HUDCO as a Consultant and later as an Adviser. However, HUDCO sought an affidavit of non-employment during his period of removal from service i.e. 14-7-2006 to 1-10-2015 and the Applicant also submitted an undertaking on 6-5-2016 to that effect. Thereafter, the Applicant was paid ₹ 14,77,441 as arrears of salary. However, it was not clarified as to on what basis the amount of ₹ 14,77,441 was arrived at. On 21-3-2017, the HUDCO authorities issued a letter asking the Applicant to furnish another affidavit in a prescribed pro forma for non-employment during the period of his removal from service. The Applicant however informed that the format was meant for serving employees who were placed under suspension and this was not applicable to him and that he had already given a certificate on 6-5-2016 and requested early compliance of the directions of the Hon'ble High Court. This led to legal consultations, with HUDCO's legal advisor and the Additional-Solicitor General ultimately affirming that no additional affidavit was required. Following these legal opinions, HUDCO's management reviewed the case and confirmed that the Applicant was entitled to ₹ 2,19,17,713 as consequential benefits, directing their release per the High Court's judgment. The Applicant faced significant delays in receiving consequential benefits from HUDCO despite a directive from the Chairman. After more than ten months of inaction, the Applicant, sent a legal notice on 24-9-2020, demanding the clearance of benefits within 15 days. Following this notice, HUDCO's Board of Directors convened a meeting to address the matter. The Board acknowledged the delay and agreed to release the benefits as per the judgment of the Gauhati High Court, dated 6-10-2015. However, they resolved to conduct an internal audit before making the final payment. Subsequently, on 22-10-2020, HUDCO credited ₹ 34,51,180 to the Applicant, after deducting ₹ 15,48,820 as tax. Once again, the basis for this calculation was not disclosed, nor was there any clarification on the total amount due from 14-7-2006 to 6-10-2015. After this payment, HUDCO again stalled, and for the next eight months, there was no further communication. On 22-6-2021, the General Manager, HR, HUDCO, sent a letter to the Applicant referencing his 18-2-2019 representation. HUDCO expressed dissatisfaction with the Applicant's undertaking regarding non-employment during his removal period and requested another affidavit. In response, the Applicant sent another legal notice on 23-8-2021, reiterating his compliance and demanding the release of all outstanding benefits per the court order. A note from HUDCO's JGM (HR), dated 17-12-2019 included a break-up of the Applicant's dues, showing a total of ₹ 2,19,17,713. So far, HUDCO had made two lumpsum payments: ₹ 14,77,441 (after tax deduction) and ₹ 34,51,180 (after tax deduction), amounting to a gross sum of ₹ 70,00,000. However, HUDCO did not specify whether these payments were part of the consequential benefits for the removal period or post-retirement benefits. The Applicant argued that HUDCO is liable to pay all due salaries, including applicable increments, for the period from 14-7-2006 to 8-10-2015, along with retirement benefits such as Provident Fund, Gratuity, and Leave Encashment. Despite making some payments, HUDCO had not provided other financial benefits, including the Applicant's monthly pension, which other retired employees receive. The only benefit received was a fixed medical allowance paid every three months. Even though the Chairman, Managing Director, and Board of Directors of HUDCO had approved the payment of consequential benefits based on legal advice from the Additional Solicitor-General of India, HUDCO officials continued to demand an affidavit of non-employment. The Additional Solicitor-General had already clarified that the Applicant's undertaking, dated 6-5-2016 sufficiently addressed HUDCO's concerns. Additionally, the legal opinion stated that FR 53, which applies to suspended employees, was not relevant to the Applicant's case since he had been removed rather than suspended. The principle of law states that when an order of removal is quashed due to illegality, leading to reinstatement, the reinstated employee is entitled to back-wages and increments. These are called consequential benefits. The High Court's judgment quashed the Applicant's removal on legal and substantive grounds, ordering reinstatement with all consequential benefits. While HUDCO reinstated the Applicant, it failed to provide the full benefits he was entitled to. This denial was a continuous legal violation against the Applicant. Moreover, HUDCO also denied the Applicant's rightful retirement benefits, which should have been provided upon the completion of regular service. Since the court ruled his removal as illegal, the period of removal must be considered time spent on duty for determining retirement benefits. Aggrieved by HUDCO's non-compliance, the Applicant filed the present O.A. The Counsel for the Applicant relied upon the following Supreme Court judgments in support of the claim of the Applicant. Allahabad Bank and others v Avtar Bhushan Bhartiya [ (2022) 13 SCC 202 ] M.A. Chowdhury v. Union of India [ 1984 ] O AWC 41/(1983) O Supreme (All.) 286. Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya and others [ (2013) 10 SCC ]. Despite the settled law on the subject, HUDCO delayed payments, failed to provide clarity on amounts, and continued to deny the full release of consequential benefits to which he is entitled to. The Respondents contended that in order to implement the Order, dated 6-10-2015 of the High Court, amount of consequential benefit was required to be calculated and for the purpose of said calculation the earnings made by the Applicant herein by virtue of his being gainfully employed either in service, business, profession, vocation for profits etc., during the period of his removal from the services has to be taken into account in terms of the law settled by the Hon'ble Supreme Court of India in the catena of judgments. Thus, the payment of consequential benefits cannot be automatic. Further, the word employment cannot be interpreted in a strict sense of service and even the self-employment or employment in business profession, vocation for profit, wherefrom any earning are made would also come within the ambit of ‘gainful employment'. Therefore, the Applicant herein was advised by the Respondent No. 1 to submit a declaration in the form of affidavit in the format devised by the Respondent in terms of law laid down by the Hon'ble Supreme Court and the Fundamental Rules in this behalf, seeking declaration from Applicant with regard to his employment/non-employment in any service, business, profession, vocation for profit, etc. and the earnings made therefrom during the period of his removal for the purpose of calculation of the amount of consequential benefit which is payable to him in terms of Order, dated 6-10-2015 of Hon'ble High Court at Guwahati. In response to the requirement as aforesaid of the Respondent No. 1, Applicant made reference to the undertaking, dated. 6-5-2016 already submitted by him stating: "that undersigned during the period 14th July, 2006 to 8th October, 2015 i.e. from the date of issue of removal order from HUDCO till reinstatement in service, have not been employed anywhere and requested the Respondent to accept the same in lieu of the declaration in the form specified by the Respondent. As the undertaking submitted by the Applicant did not provide the complete information, as therein he merely stated that he was not employed anywhere instead of declaring that he was not employed in any business, profession, vocation for profit and earnings made therefrom during the aforesaid period of dismissal, thus this undertaking lacks the full disclosure as was required from him. Accordingly, he was again advised to submit the declaration in the form specified by the Respondent. However, despite of several requests to him in this behalf he persisted to continue his stand and did not provide the declaration in the requisite form of affidavit in spite of the fact that in one of his communications i.e. Letter dated 18-2-2019 he did admit that "...I had to find ways and means to sustain myself". It is submitted that the declaration in the form of affidavit, specified by Respondent is in line with the law laid down by the Hon'ble Supreme Court with regard to concept of the 'gainful employment' and adjustment of income derived from such 'gainful employment' for the purpose of calculation of consequential benefit, as referred in Para.(D) above and other similar judgments. Further, the same was not under FR 53(2) but in the spirit thereof and was in consonance with the requirement laid down under FR 54-A(5) which is applicable for the case of dismissal. It is also to submit that the underlying principle under FR 53(2) and 54-A (1) is the same. On reinstatement, an employee should be put to the same position he would have been had the order of his dismissal / removal from the services not been passed. Therefore, any amount earned by the employee during relevant period through any employment i.e. in establishment, business, profession, vocation for profit etc. needs to be adjusted from the amount of 'consequential benefit' payable to the employee to avoid "unjust enrichment" or the employee and the word employment should not be interpreted in the strict sense of service for salary alone. In view thereof i.e. legal position settled by the Hon'ble Supreme Court and to meet the requirement laid down under relevant FR 54-A(5), the Respondent time and again advised the Applicant through various communication to submit the declaration by way of affidavit in the form specified by the Respondent to meet ends of justice; and to enable the Respondent to calculate the amount of ‘consequential benefit' payable to him in terms of the Order, dated 6-10-2015 of the Hon'ble Gauhati High Court. Learned Counsel for the Respondents relied upon the judgment passed by the Hon'ble Apex Court in the case of North East Karnataka Road Transport Corporation v. M. Nagangouda reported in [ 2007 STPL 2429 SC ], as well as Niranjan Cinema v. Prakash Chandra Dubey and another [ (2008) STPL 1638 SC ].

Original Rule Text

Original Rule Text