Central Administrative Tribunal - Gauhati
K Ravendra Alva vs Hudco Division on 26 July, 2024
1
CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
Original Application 040/00329/2021
HON'BLE SMT. URMITA DATTA (SEN), JUDICIAL MEMBER
HON'BLE DR. SUMEET JERATH, ADMINISTRATIVE MEMBER
K. RAVEENDRA ALVA,
Son of Late Jagannatha Alva,
resident of House No.549,
1st Main 1st Cross, RMV II Stage, III Block,
PO & PS: Sanjaynagar
Bangalore 94, Karnataka.
ph.09448043335.
Email.ID. [email protected].
.......Applicant
-AND-
1. The Housing and Urban Development
Corporation Ltd. (HUDCO),
Represented by its Chairman and Managing
Director, HUDCO Bhawan,
India Habitat Centre, Lodhi Road, New Delhi-
110003.
2. The Chairman and Managing Director,
Housing and Urban Development Corporation Ltd.,
HUDCO Bhawan, India Habitat Centre, Lodhi Road,
New Delhi-110003.
3. The Board of Directors, HUDCO,
represented by the Chairman, Housing and Urban
Development Corporation Ltd., HUDCO Bhawan,
India Habitat Centre, Lodhi Road, New Delhi-
110003.
O.A. No/329/2021
2
4. Union of India, through the Secretary,
Ministry of Urban Development & Housing,
Government of India, New Delhi.
-Respondents
Present:
For applicant(s): Sri P. K. Tiwari, Sr. Adv.
For respondents: Sri K. Bhattacharya, HUDCO Counsel
Date of hearing: 19.07.2024 Date of Order: 26.07.2024
ORDER
PER: URMITA DATTA (SEN), MEMBER (J):
The instant application has been filed seeking the following relief:
"8.1. Direct the respondents to release forthwith the consequential service benefits of the applicant for his period of removal from service and other post retirement benefits i.e left over Rs. 2,19,17,713/- with interest at the bank rate calculated with effect from the date of his retirement.
8.2. Pass any such order/orders as Your Lordships may deem fit and proper.
8.3. Cost of the application."
2. As per the applicant, while serving as Executive Director (Finance) in HUDCO, he faced a disciplinary proceeding which culminated in imposition of penalty of removal from service w.e.f. 14.07.2006. This was followed by a series of litigations beginning from this Tribunal to the Division Bench O.A. No/329/2021 3 of the Hon'ble Gauhati High Court. Finally, the Division Bench of the Hon'ble High Court vide Judgment & Order dated 06.10.2015 passed in WP(C) No.1667/2014 set aside all the orders which included, the report of Inquiry Officer, the orders of disciplinary authority, appellate authority and the order of the Gauhati Bench of the Tribunal (Annexure A/1). The Hon'ble High Court in its Judgment & Order directed reinstatement of the applicant to the post of Executive Director (Finance), HUDCO immediately with all consequential benefits.
Pursuant to the Judgment of the Hon'ble High Court dated 06.10.2015, the applicant submitted his joining report on 08.10.2015 and has joined the HUDCO on the said date. That on 30.10.2015, the applicant was relieved from HUDCO on attaining the age of superannuation on the condition that his relieving and the release of consequential benefits would be subject to the decision/outcome of the Special Leave Petition then pending before the Hon'ble Supreme O.A. No/329/2021 4 Court. On being relieved the applicant was paid an amount of Rs.50,547/- via cheque No. 680725 dated 30.10.2015 towards the provisional salary for the period 08.10.2015 to 31.10.2015 (Annexure: A/2). However, the Hon'ble Apex Court vide order dated 30.11.2015 refused to interfere with the order of the Hon'ble High Court and dismissed the SLP (C) No.30464/2015. Annexure A/3.
2.1. Even after his retirement, the applicant was appointed by HUDCO as a Consultant for a period of 3(three) months w.e.f. 16.11.2015. On expiry of the aforesaid period of 3(three) months, the HUDCO vide order dated 21.04.2016 appointed the applicant as Adviser for a period of 6(six) months w.e.f. his date of joining, i.e. 05.05.2016.
Subsequently, HUDCO asked the applicant to give an undertaking to the effect that he was not re-employed anywhere during the period of his removal from service, i.e. from 14.07.2006 to 06.10.2015. Consequently, the applicant O.A. No/329/2021 5 submitted an undertaking dated 06.05.2016 to that effect to the HRD Wing of HUDCO (Annexure: A/4)
2. 2. Thereafter, the HUDCO on 28.03.2016 credited to the applicant's account an amount of Rs.14,77,441/- after deducting an amount of Rs.6,28,959/- as tax at source. The said amount was paid as part of arrear salary. To this effect, Form No.16 under Rule 31(1-A) of the Income Tax Rules was also issued to the applicant. However, it was not clarified by HUDCO authority as to on what basis they calculated the amount of Rs.14,77,441/- as part of arrear salary. It was also not clarified as to what would be the applicant's total arrear an salary for the period from 14.07.2006 to 06.10.2015.
On 21.03.2017, the HR Wing, HUDCO issued a letter to the applicant wherein the applicant was asked to furnish an affidavit of non- employment for the period of his removal from service in the format prescribed. A copy of the prescribed format was also enclosed along with the letter (Annexure: A/6).
O.A. No/329/2021 6 Pursuant to the letter dated 21.03.2017 issued by HUDCO, the applicant vide letter dated 27.03.2017 informed HUDCO that he on an earlier occasion had submitted an undertaking to the Office of the Executive Director (HR) on the issue of non-employment during the relevant period from 14.07.2006 to 08.10.2015. He further pointed out that the format enclosed therein with the letter dated 21.03.2017 is meant for HUDCO employees who are placed under suspension as part of disciplinary action and his case being different, the format was not applicable to him. In the said letter, the applicant urged the HUDCO authorities to comply with the direction of the Hon'ble High Court at the earliest (Annexure A/7).
2.3. In context of furnishing of affidavit of non- employment for the period of applicant's removal from service in the format prescribed, the reply of the applicant that he had already filed an undertaking dated 06.05.2016 stating the same and that the prescribed format under FR 53 was for employees who were put under suspension as O.A. No/329/2021 7 part of disciplinary action and his case being different, the format was not applicable to him created a division of opinion among the officials of HUDCO. As such, HUDCO sought the opinion of its legal consultant.
In reply to the query of HUDCO, the legal consultant of HUDCO in his opinion dated 22.11.2017 categorically opined that HUDCO was not entitled to seek any affidavit of non-employment from the applicant and bound to grant him all consequential benefits as directed by the High Court (Annexure: A/8).
In the meanwhile, the applicant again submitted a representation Dated 18.02.2019 to HUDCO highlighting the issue of submitting of affidavit of non-employment reiterating his earlier stand that the format prescribed by HUDCO is meant for employees under suspension from service and not for someone who was removed from service and later on reinstated. Further, through the said representation the applicant again requested the HUDCO O.A. No/329/2021 8 officials to release his consequential benefits as directed by the Hon'ble Gauhati High Court (Annexure: A/9). 2.4. Since HUDCO was not satisfied with the opinion of the legal consultant, HUDCO decided to seek further legal opinion. To clear up the air on the issue of submission of affidavit of non-employment by the applicant, HUDCO sought legal opinion from the Additional Solicitor General of India.
The Additional Solicitor General of India in his legal opinion dated 17.11.2019 (Annexure A/10) opined on the issue of submitting of affidavit of non-employment by the applicant that although HUDCO was not precluded from asking for information in prescribed format, the factum of applicant's disclosure vide an undertaking would suffice as valid disclosure of information sought. Furthermore, the Additional Solicitor General also clarified that FR 53 (under which affidavit is being sought) relates to an employee placed under suspension and not someone who is terminated/removed from service and accordingly advised O.A. No/329/2021 9 HUDCO to disburse the consequential benefits due to the applicant in terms of the Judgment & Order of the Hon'ble Gauhati High Court dated 06.10.2015.
Subsequent to the legal opinion of the Additional Solicitor General, the JGM(HR), HUDCO submitted Note dated 17.12.2019 detailing in brief the opinion of the Additional Solicitor General on the queries raised by HUDCO and placed it before the Chairman & Managing Director, HUDCO for necessary action. Along with the Note, a head- wise detail breakup of dues outstanding in respect of the applicant was also placed before the Chairman & Managing Director. This Note showed that the total amount due to the applicant as consequential benefits for his period of removal from service was Rs. 2,19,17,713/-. The Chairman & Managing Director, HUDCO after perusing the Note dated 17.12.2019 accepted the legal opinion of the Additional Solicitor General in his note dated 19.12.2019 and directed that the consequential benefits due to the applicant be cleared as per the Judgment and Order of the O.A. No/329/2021 10 Hon'ble Gauhati High Court dated 06.10.2015 (Annexure A/11 & 12 respectively).
2.5. Even after the direction of the Chairman for release of consequential benefits to the applicant, nothing moved for more than 10(ten) months. Then on 24.09.2020 the applicant thorough his counsel send a legal notice to HUDCO demanding clearance of his consequential benefits as per the Judgment and Order of the High Court within 15 days of receipt of the said legal notice (Annexure:
A/13).
Soon after the letter dated 24.09.2020, a Board of Directors meeting of HUDCO was held. In the said meeting the issue of payment of consequential benefits to the applicant as per the Judgment and Order of the Hon'ble Gauhati High Court was discussed and deliberated. The Board took note of the fact that substantial delay has been caused in releasing the consequential benefits to the applicant and passed a number of resolutions whereby it took note of the decision of the Chairman & Managing O.A. No/329/2021 11 Director, HUDCO in accepting the opinion of the Additional Solicitor General of India for release of the consequential benefits as per the order of the Hon'ble Gauhati High Court dated 06.10.2015 to the applicant from the date of his removal to the date of his reinstatement based on the undertaking given by him. The Board of Directors passed a resolution for conducting an internal audit before releasing final payment to the applicant (Annexure: A/14). 2.6. Subsequent to the meeting of the Board of Directors, on 22.10.2020, HUDCO credited a sum of Rs.
34,51,180/- to the applicant after deducting an amount of Rs.15,48,820/- as tax at source. The said amount was paid as part of consequential benefit due to the applicant. However, it was not clarified by HUDCO authority as to on what basis they calculated the amount of Rs. 34,51,180/- as part of consequential benefit. It was also not clarified as to what would be the applicant's total consequential benefit due for the period from 14.07.2006 to 06.10.2015 (Annexure:
A/15).
O.A. No/329/2021 12 After the payment made on 22.10.2020, HUDCO again went into sleep mode and for the next 8(eight) months there was no further communication from their side. Then on 22.06.2021 (Annexure A-16) out of the blue, the General Manager, HR, HUDCO wrote a letter to the applicant wherein she stated giving reference to the representation of the applicant dated 18.02.2019 that HUDCO was not satisfied with his undertaking regarding his non-employment during his period of termination from service and again asked the applicant to furnish an affidavit of non-
employment for the period of termination from service. 2.7. In response to the letter of HUDCO dated 22.06.2021, the applicant send another legal Notice dated 23.08.2021 (Annexure: A/17). Through the said legal notice, in reply to the letter of HUDCO dated 22.06.2021 the applicant reiterated his earlier stand regarding submission of affidavit of non-employment and demanded the release of consequential benefits due to him as per the order of the Hon'ble High Court dated 06.10.2015.
O.A. No/329/2021 13 The note of JGM (HR), HUDCO dated 17.12.2019 detailing in brief the opinion of the Additional Solicitor General and placed before the Chairman & Managing Director, HUDCO for necessary action also contained a head-wise detail breakup of dues outstanding in respect of the applicant. The Note at Annexure:12 showed that the total amount due to the applicant as consequential benefits for his period of removal from service and other post retirement benefits was Rs. 2,19,17,713/-. It is submitted that till date, HUDCO has made 2 (two) lump sum payments to the applicant towards payment of consequential benefits for his period of removal from service and other post retirement benefits. The first payment was made of Rs.14,77,441/- after deducting Rs.6,28,959/- as tax at source (i.e., Rs.20,00,000 without deducting tax). This sum of Rs.20,00,000 was released as interim advance payment against consequential benefits but under what head it was paid was not specified. The second payment was made of Rs.34,51,180/- after deducting Rs.15,48,820/- as tax at source O.A. No/329/2021 14 (i.e., Rs.50,00,000/- without deducting tax). This sum of Rs.50,00,000 was also released as interim payment against consequential benefits without disclosing the head of payment. Thus, till date HUDCO has made payment of Rs.70,00,000/-(before deduction of tax at source) to the applicant out of the total due of Rs.2,19,17,713/-. However, it is clarified that HUDCO till date has not disclosed as under
which heads the money was paid, whether it was paid as part payment of consequential benefit for his period of removal from service or it was part of the post retirement benefits due to the applicant.
2.8. As per the applicant, in compliance of the Judgment & Order of this Hon'ble Court dated 06.10.2015, HUDCO is liable to pay all the salaries due to the applicant during the period of his removal from service, i.e. from 14.07.2006 to 08.10.2015 coupled with the increments as and where applicable. Further, the HUDCO is legally bound to pay to the applicant his other retirement benefits, like Provident Fund, Gratuity, Leave Encashment, etc. It is O.A. No/329/2021 15 pertinent to mention here that apart from an amount of Rs.14,77,441/- paid as advance for settlement of the dues;
Rs.50,547/- as provisional salary for the period from 08.10.2015 to 31.10.2015 and Rs.34,51,180/- as part of consequential benefit; the applicant is yet to receive other financial benefits including Provident Fund, Gratuity and Leave Encashment. Furthermore, the monthly pension which is paid to superannuated employees of HUDCO has also never been paid to the applicant. Till date, of all the post-retirement benefits, the applicant is only getting the fixed medical allowances which is paid once in every 3(three) months.
It is stated that even after the Chairman & Managing Director, HUDCO and the board of Directors of HUDCO in the board meeting approved the payment of consequential benefits to the applicant on the basis of the legal opinion given by the Additional Solicitor General of India, officials of HUDCO are harassing the applicant with O.A. No/329/2021 16 demand for submission of an affidavit of non-employment during his period of removal from service. 2.9. Though the Additional Solicitor General of India in his legal opinion had clarified that the undertaking of the applicant dated 06.05.2016 declaring his non-employment during his period of removal from service satisfies the queries of HUDCO regarding the issue. Furthermore, in the said legal opinion the Additional Solicitor General had also clarified that FR 53 pertains to employees who are under suspension from service and not to employees who were removed/terminated from service. Moreover, the Chairman & Managing Director having accepted the legal opinion of the Additional Solicitor General and having passed direction for release of consequential benefits due to the applicant, the demand by the Officials of HUDCO for an affidavit of non-employment from the applicant shows the high handed and vindictive nature of the officials of HUDCO who are acting in contravention to the direction of the highest authority.
O.A. No/329/2021 17 2.10. The principle of law is well settled that once an order of removal from service is quashed on the ground of illegality resulting in reinstatement in service then the reinstated employee is entitled to get the back wages and all the increments for the period of removal, which he otherwise would have got had he not been removed from service. Such benefits in service parlance are called consequential benefits. The Hon'ble High Court in its Judgment & Order quashed the order of applicant's removal from service on the ground of illegality as well as on merit and directed his reinstatement in service with all consequential benefits. Though the HUDCO authorities reinstated the applicant but denied him consequential benefits of such reinstatement which applicant would have otherwise got had he not been removed from service. Hence, the denial of consequential benefits to the applicant is a continuous wrong against the applicant. Additionally the HUDCO authorities also denied the retirement benefits to the applicant which he was entitled O.A. No/329/2021 18 to post retirement on completion of regular service. Since the order of applicant's removal from service was quashed on the ground of illegality, the period of applicant's removal has to be treated as period spent on duty and should be counted for determining the retirement benefits of the applicant. Being aggrieved with, he has filed the instant O.A. Learned counsel for the applicant has also relied upon judgement of the Hon'ble Apex Court in;
(i) Allahabad Bank and Others vs Avtar Bhushan Bhartiya (2022) 13 SCC 202.
(ii) M.A Chowdhury Vs Union of India [1984] 0 AWC 41/[1983] 0 Supreme (All) 286
(iii) Deepali Gundu Surwase vs Kranti Junior Adhyapak Mahavidyalaya (D.ED) and Others (2013) 10 SCC 324.
3. The respondents have filed their written statement wherein it has been stated that in order to implement the order dated 06.10.2015 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 O.A. No/329/2021 19 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'. 3.1. 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 O.A. No/329/2021 20 removal for the purpose of calculation of the amount of consequential benefit which is payable to him in terms of order dt. 06.10.2015 of Hon'ble High Court at Guwahati. 3.2. In response to the requirement as aforesaid of the Respondent No. 1, Applicant made reference to the undertaking dated. 06.05.2016 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.
3.3. 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 there from during the aforesaid period of dismissal, thus this O.A. No/329/2021 21 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. 3.4. 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 dt. 18.02.2019 (Annexure A/9 to the OA) he did admit that "...I had to find ways and means to sustain myself".
3.5. 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.
O.A. No/329/2021 22 3.6. 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.
3.7. 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 O.A. No/329/2021 23 'consequential benefit' payable to him in terms of the order dated 06.10.2015 of the Hon'ble Gauhati High Court.
4. Learned counsel for the Respondents has relied upon the judgment passed by the Hon'ble Apex Court in the case of North East Karnataka Road Transport Corporation vs. M. Nagangouda reported in 2007 STPL 2429 SC as well as Niranjan Cinema vs Prakash Chandra Dubey & Anr. (2008) STPL 1638 SC.
5. We have heard the parties and perused the records as well as the judgements of both the parties.
6. It is noted that as per the applicant though the Hon'ble Gauhati High Court had directed the authority to reinstate the applicant immediately and make payment with all consequential benefits vide their judgement and Order dated 06.10.2015, but till date, he has not been paid the entire consequential benefits but was asked by the respondents to submit Affidavit with respect to his earning O.A. No/329/2021 24 during the period of his termination till his reinstatement with detail.
However, as per the applicant, though he had already submitted his undertaking for non-employment on 06.05.2016 but the respondents without considering the said undertaking had asked him for filing of Affidavit with detail in this regard.
On the contrary, respondents have submitted that as per F.R. 54 (A) (1) & (5), he has to give full disclosure on the Form specified by the HUDCO. It was also noted that as per the applicant, he was served with a Form under Rule F.R. 53 which is applicable for suspended employee, however, the applicant was directly terminated by the respondent authority.
7. It is noted that according to respondents, as per F.R. 54- A (1) & (5), the applicant has to file details of his earning during the period as stated above. Therefore, let us see what FR 54-A stipulates, which is as reproduced under:
O.A. No/329/2021 25 "F.R. 54-A. (1) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by a Court of Law and such Government servant is reinstated without holding any further inquiry, the period of absence from duty shall be regularized and the Government servant shall be paid pay and allowances in accordance with the provisions of sub-rule (2) or (3) subject to the directions, if any, of the Court.
(2) (i) Where the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, the Government servant shall, subject to the provisions of sub-rule (7) of Rule 54, be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been dismissed, removed or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him, in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice:
(ii) The period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.
(3) If the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement, as the case may be.
O.A. No/329/2021 26 (4) The payment of allowances under sub-rule (2) or sub-rule (3) shall be subject to all other conditions under which such allowances are admissible.
(5) Any payment made under this rule to a Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of dismissal, removal or compulsory retirement and the date of reinstatement. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant." From the perusal of the above, it is noted that Rule F.R. 54-A (1) deals with such dismissal removal or compulsory retirement of a Government servant, which was set aside by a Court of Law, whereby the Government servants was reinstated without holding any further inquiry and for that purpose, the period of absence from duty shall be regularized and he should be paid pay and allowances in accordance with the provisions of sub Rule 2 or 3 subject to the directions of the Court.
8. The Hon'ble Gauhati High Court vide their judgement and Order dated 06.10.2015 passed in WP (C) 1667/2014, had observed the following:
O.A. No/329/2021 27 "31. In view of our forgoing discussion, we have found that there are materials on record to conclude that the experience which the petitioner/appellant had gathered while working as Special Assistant in Vijaya Bank was executive in nature but to support contra view, no reliable evidence could be brought on record by HUDCO. Being so, we are to hold that in 2003, the petitioner had the requisite qualification to apply for the post of Executive Director (Finance).
32. Even if one assumes only for the sake of argument for a moment that duty, assigned to petitioner as Special Assistant, was not executive in nature, yet, in view of information, furnished in the application, filed by the petitioner/appellant, offering his candidature to the post of ED (Finance), it needs to be concluded that the petitioner/appellant never furnished false information in his application seeking appointment to the post of ED (Finance).
33. ......xx....xx.......xx.....xx
34. .....xx...xx...xx.....xx..xx
35. Being so, in our considered opinion, the finding of the inquiry officer holding the appellant/petitioner guilty of furnishing false information while seeking appointment to the post of ED (Finance) is found unsustainable and consequently, the decision of the appellate authority as well as the decision of the CAT, Gauhati Bench in TA No. 4/2011 are also found unsustainable and as such, all those findings are liable to be quashed and set aside.
36. ...xx...xx...xx........xx...xx
37. Since we have found that the enquiry under challenge is unsustainable on some other counts, we have already detailed hereinbefore, we are not inclined to probe such allegations as well.
38. In the result, we have found that the reliefs sought for in this petition needs to be granted by allowing the present petition.
39. Consequently, we set aside all the orders which were impugned in this proceeding.
40. The respondent authorities are directed to reinstate the petitioner to the post aforesaid immediately with all consequential benefits."
O.A. No/329/2021 28 From the perusal of the FR 54 (A)(1) vis-à-vis the judgement passed by the Hon'ble High Court, which was further affirmed by the Hon'ble Apex Court vide their Order dated 30.11.2015 in SLP No. 30464/2015, it is noted that the applicant was directed to be reinstated with all consequential benefits. Therefore, as per FR 54-A (1), the period of absence from duty has to be regularized and the applicant is entitled to be paid the pay and allowances in accordance with the provisions of Sub Rule (2) or (3) subject to the directions of the Court.
It is further noted that the provision of FR 54 -A (2) (i) & (ii) deals with situation when dismissal, removal or compulsory retirement of a Government servant is set aside by the Court solely on the ground of noncompliance with the requirements of Clause (1) or Clause (2) of Article 311 of the Constitution, and where he is not exonerated on merits, in that situation, as per Rule 54 (A)( 2)(ii), the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding O.A. No/329/2021 29 such dismissal, removal or compulsory retirement, as the case may be, and the date of judgment of the Court shall be regularized in accordance with the provisions contained in sub-rule (5) of Rule 54.
As per F.R. 54 A (3), if dismissal, removal or compulsory retirement order is set aside by the Court on the merit of the case, the intervening period between the date of dismissal including the period of suspension, if any as the case may be, till the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowance for the period.
Since the case of the applicant was decided on the basis of merit by quashing the Inquiry report, the Disciplinary Authority Order and the Appellate Authority Order, therefore, in our considered opinion his case would be guided by Rule 54-A (1) as well as (3) and he has to be paid full pay and allowances for the period from the date of his dismissal till his reinstatement as per F.R. 54-A (3) but in no way he is covered by F.R. 54-A (2) (ii). Therefore, the question O.A. No/329/2021 30 of compliance of Rule F.R. 54-A (5) does not come which is only related with the F.R 54-A (2) (i) and (ii).
9. Further, even for sake of argument, we have to accept the contentions of the respondents that he has to give undertaking as he is covered by F.R. 54-A (5). In that case also, there is no stipulation in F.R. 54-A (5) for submitting detail Affidavit in the case covered under F.R. 54 (A) (2) (i) & (ii). Moreover, the applicant had already submitted his undertaking on 06.05.2016, which till date some of the respondents are not taking care of though the Additional Solicitor General of India in his legal opinion dated 17.11.2019 (Annexure A/10 & A-8) opined on the issue of submitting of affidavit of non-employment by the applicant that although HUDCO was not precluded from asking for information in prescribed format, the factum of applicant's disclosure vide an undertaking would suffice as valid disclosure of information sought.
Furthermore, the Additional Solicitor General also clarified that FR 53 (under which affidavit is being sought) O.A. No/329/2021 31 relates to an employee placed under suspension and not someone who is terminated/removed from service and accordingly advised HUDCO to disburse the consequential benefits due to the applicant in terms of the Judgment & Order of the Hon'ble Gauhati High Court dated 06.10.2015.
Therefore, in our considered opinion, there is no requirement of submitting any Affidavit as per FR 54-A (1) and (5), as the applicant is fully covered by the proviso of Rule 54-A (3).
10. Since as per the respondents themselves, the applicant has to file Affidavit as per F.R. 54-A (5), therefore, the judgment as relied by the respondents in the case of North East Karnataka Road Transport Corporation (supra) is distinguishable since the said case relates to private company employee who is not covered by the aforesaid Rules.
11. Accordingly, we direct the respondents to release immediately the consequential benefits of the applicant with a detailed statement of accounts of consequential O.A. No/329/2021 32 benefits for the period of removal from service to the date of reinstatement as per direction of Hon'ble Gauhati High Court vide their judgement and Order dated 06.10.2015 passed in WP (C) 1667/2014, as well as other post-retirement benefits within a period of 4 (Four) weeks from the date of receipt of copy of this order alongwith simple interest @ 6% from the date of his entitlement till the date of his payment after adjusting the amount already paid to the applicant as in the meantime, the applicant was reinstated and admittedly was further appointed on contractual basis by the same respondents.
12. Accordingly, the instant OA stands disposed of with the above observations and directions with no order as to costs.
(DR. SUMEET JERATH) (URMITA DATTA SEN)
MEMBER (A) MEMBER (J)
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O.A. No/329/2021