Allahabad High Court
General Manager, National Thermal ... vs Gurucharan Singh S/O Late Shri Harish ... on 20 April, 2007
Equivalent citations: 2007(3)AWC2551
Author: Sudhir Agarwal
Bench: S. Rafat Alam, Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. These two appeals arise out of the same judgment dated 28.1.2004 passed by Hon'ble Single Judge in writ petition No. 55148 of 2002 and, therefore, as requested by the learned Counsel for the parties, have been heard together and are being decided by this common judgment.
2. Special Appeal No. 184 of 2004 has been filed by the National Thermal Power Corporation--respondents in Civil Misc. Writ Petition No. 55148 of 2002 (hereinafter referred to as the appellant/ NTPC) aggrieved by the aforesaid judgment, insofar as the writ petition has been allowed and the order of dismissal passed against the petitioner respondent has been set aside. Special Appeal No. 305 of 2004 has been filed by Gurucharan Singh-- petitioner of writ petition No. 55148 of 2002 (hereinafter referred to as the petitioner/employee) against the aforesaid judgment of Hon'ble Single Judge and is confined to the extent the Hon'ble Single Judge has relegated the matter to the disciplinary authority for holding a fresh inquiry from the stage of close of management's witnesses. He has further prayed for quashing of the entire proceedings inasmuch as, there was no occasion to subject him for disciplinary inquiry again.
3. The factual matrix in brief is as under:
The petitioner/employee, Gurucharan Singh- was appointed on 23.7.1986 as Diesel Mechanic Grade-3 at Rihand Super Thermal Power Project owned by National Thermal Power Corporation (hereinafter referred to as 'NTPC'). He was transferred on 11.11.1991 and posted at Ash Handling Plant, National Capital Power Station, Vidyut Nagar, District Gautam Budh Nagar. A branch of Delhi Public School (hereinafter referred to as '"the School') is being run at Vidyut Nagar wherein Smt. Indira Chaturvedi, the wife of Sri A.C. Chaturvedi, Assistant General Manager (HR) NTPC (respondent No. 5) is also working as teacher. The Principal of the aforesaid school made a complaint that on 27.10.1998 the petitioner/employee used abusive language over telephone to Mrs. Chitra Venkat, P.A. to Principal of the School while asking her to transfer the call to Sri S.P. Juneja, Principal and when the call was finally transferred to the Principal, Sri Gurucharan Singh abused the Principal also using filthy language. Subsequently, on the same day at about 2.00 p.m. he misbehaved with Miss Simmi Arora, a teacher of the aforesaid School by abusing her in front of several staff members. Thereafter, respondent No. 5 also lodged an FIR under Sections 279, 338 and 307 IPC at Police Station Jarcha, being case crime No. 99 of 1998 alleging that on 30.10.1998 when he alongwith his wife was crossing the road, the petitioner/employee who was present in a shopping center came out, started his scooter with high accelerator and collided the same with him with great speed whereupon respondent No. 5 fell on the road and temporarily lost his consciousness. Complaint of the said incident was also made to the higher authorities. Ultimately, the petitioner/employee was suspended vide order dated 31.10.1998, by the Deputy General Manager (AHP). A charge sheet dated 5.11.1998 was issued to the petitioner/employee containing the allegations of absence from duty without prior permission on 30.10.1998, negligence on duty and absconding from work spot on 30.10.1998, assaulting and causing serious injury to respondent No. 5 in Company's Estate, riotous, disorderly and indecent behaviour within the premises of the company adversely affecting the work and discipline, habitual breach of standing orders, refusal to accept communication from the Management and violation of paragraphs 26 (6), (8), (11), (12), (24), (50) and (63) of the standing orders.
4. The departmental inquiry started on 23.12.1998 and continued on various dates. In the meantime, the petitioner/employee travelled thrice this Court, In writ petition No. ' 16349 of 1999, he came with a prayer to stay the departmental proceeding until criminal trial under case crime No. 99 of 1998 is concluded. The aforesaid writ petition was finally disposed of vide judgment dated 20.4.1999 with the observation that in case the petitioner makes a representation raising all his objections, the same may be considered by the competent authority and decided in accordance with law. The second writ petition No. 37471 of 1999 was against the order dated 22.5.1999 whereby his representation was rejected but the same was dismissed observing that the nature of allegations in criminal case did not appear to be identical which might seriously prejudice the departmental inquiry and disclosure of his defence therein. He came in third writ petition No. 39906 of 1999 with a prayer of mandamus, commanding the inquiry officer to grant him opportunity to cross-examine the witnesses and to produce his defence witness which was disposed of on 16.9.1999 with the observation that he may make an application to grant him opportunity to produce evidence and if such an application with defence brief is filed, the competent authority was directed to take a decision on the said application expeditiously before proceeding further with the inquiry.
5. In the meantime, the oral inquiry, as already observed, proceeded on various dates and the last management witness i.e. Sri Arvind Srivastava, MW-9 was examined on 29th July, 1999. The Inquiry Officer fixed 31.7.1999 for examination of the aforesaid witness and thereafter for the defence evidence. It appears that Dr. Mukul Saxena at National Capital Power Project Hospital examined the petitioner/employee on 29.7.1999 and on 30.7.1999 referred his case to All India Institute of Medical Sciences, New Delhi for opinion. The Chief Medical Officer issued necessary certificate for providing ambulance to the petitioner/employee on 31.7.1999 and a copy thereof has been placed on record as Annexure-5 to the writ petition. On account of the aforesaid illness the petitioner/employee neither appeared before the Inquiry Officer on 31.7.1999 nor on 9.8.1999 which was the next date fixed. The order sheet dated 31.7.1999 shows that the management's evidence was closed on 31.7.1999, and 9.8.1999 was fixed for commencement of defence evidence. The Inquiry Officer in the absence of the petitioner/employee on 9.8.1999 closed the proceedings and permitted the presenting officer to submit his written brief by 20th August, 1999 with a copy to the petitioner/employee by 24th August, 1999, whereafter he could have submitted his defence written brief within 15 days from the day of receipt of such written brief or by 8th September, 1999 failing which the Inquiry Officer shall proceed to submit Inquiry Report. The petitioner/employee, thereafter sent letter dated 12.8.1999 disclosing that he could not participate in proceeding on 31.7.1999 and 9.8.1999 due to his illness and requested him to permit examination of the department witnesses and also to allow him to produce defence witness. Thereafter, pursuant to this Court's order dated 16.9.1999 passed in writ petition No. 39906 of 1999, he submitted a detailed representation dated 11.10.1999, giving list of his defence witnesses etc. However, the Inquiry Officer vide letter dated 15.10.1999 informed him that he had already submitted his inquiry report on 19.9.1999 and, therefore, was not competent to conduct any further inquiry in the matter. The disciplinary authority however, vide order dated 21/23.10.1999 permitted the petitioner/employee to submit his written brief only as per the direction of this Court and the petitioner/employee accordingly, submitted the said brief dated 13.12.1999. The disciplinary authority vide letter dated 2.3.2000 informed the petitioner/employee that he had been given ample opportunity to defend his case and the inquiry officer had already submitted his report. Simultaneously, a Show cause notice dated 2.3.2000 was served upon the petitioner/employee concurring with the findings of the Inquiry Officer and requiring the petitioner/employee to show cause as to why he should not be dismissed from service. The copy of the inquiry report was also enclosed with the aforesaid show cause notice. The petitioner submitted his objections dated 6.4.2006 whereafter the order dated 16.8.2001 was issued by the General Manager, NTPC imposing punishment of removal upon the petitioner/employee. He filed a review application under the Rules which was rejected vide order dated 14.9.2002 by the review authority i.e. Chairman and Managing Director NTPC whereafter the writ petition was filed which has been allowed by the Hon'ble Single Judge vide judgment under appeal.
6. The Hon'ble Single Judge while allowing the writ petition has quashed the punishment order, inquiry report as well as the order rejecting the review application of the petitioner and has relegated the matter back, directing the appellant to proceed with the disciplinary inquiry again from the stage of close of management witnesses after changing the Inquiry Officer and thereafter, affording due opportunity of defence to the petitioner. The petitioner has also been held entitled for arrears of salary as well as costs.
7. Sri Ashok Khare, learned Senior Advocate, assisted by Sri K.M. Mishra submitted that the writ petition itself was not maintainable since the petitioner was a workman and the grievance raised before the writ court was basically concerned with the breach of Certified Standing Orders, hence, he had an alternative remedy of approaching the Labour Court under the provisions of Industrial Disputes Act, 1947. Therefore, in view of the law laid down in Rajasthan Trading Corporation v. Krishan Kumar , the writ petition complaining breach of Certified Standing Orders should not have been entertained and the petitioner ought to have been relegated to avail the alternative remedy. He further contended that the petitioner was guilty of deliberate avoidance of participation in inquiry proceedings and despite repeated opportunities, absented himself. In these circumstances, the Inquiry officer was well within his right to proceed ex parte and the order of punishment pursuant to the report of the Inquiry Officer cannot be faulted. He further submitted that the management never admitted about the accident of the petitioner and this finding of the Hon'ble Single judge is perverse. He also contended that in any case, while relegating the matter for holding inquiry again from the stage of close of management Witnesses, further direction by the Hon'ble Single Judge, entitling the petitioner for reinstatment with full arrears of salary is not sustainable in view of the law laid down in U.P. State Electricity Board, George Town, Allahabad v. V.J. Alexander (1997) 3 UPLBEC 2036 ; NTC (WBAB&O) Ltd. and Anr. v. Anjan K. Saha ; Banaras Hindu University, Varanasi and Ors. v. J.N. Tripathi (1996) 3 UPLBEC 1976.
8. Per contra, learned Counsel for petitioner/employee placed before this Court various proceedings and minutes of the inquiry proceedings to show that he was under treatment of the hospital of NTPC itself and this fact was well within the knowledge of the Inquiry Officer as well as the management. His absence was also on account of medical advice rendered by the Senior Medical Officers of NTPC hospital and, therefore, the Hon'ble Single Judge has rightly held that the inquiry proceedings had been conducted in an illegal manner resulting in denial of adequate opportunity to the petitioner/employee and, therefore, the punishment order has rightly been set aside. He further contended that the management was guilty of not affording opportunity to the petitioner/employee despite earlier orders passed by this Court in writ petition No. 39906 of 1999 and since there was blatant violation of principles of natural justice and the inquiry proceedings were also highly biased, the writ petition was rightly entertained and has been decided on merits by the Hon'ble Court in view of well settled exception of doctrine of exhaustion of alternative remedy that where there is violation of principles of natural justice, the Court may not relegate the party to avail alternative remedy and entertain the writ petition directly.
9. The petitioner/employee in support of its appeal pointed out only two facts. Firstly, that the entire inquiry proceedings were tainted with bias and violative of principles of natural justice and in the circumstances, there was no reason not to quash the entire disciplinary proceedings. The direction relegating the matter to. conduct disciplinary inquiry from the stage of close of management's witnesses is, therefore, unsustainable and the entire inquiry from the stage of chargesheet itself, if at all, should have been directed afresh. Going deeper in issue, he contended that since the charges levelled against him are flimsy and do not constitute misconduct, therefore, there was no occasion to give liberty to the management to hold any fresh inquiry since the inquiry proceedings were' only to harass the petitioner/employee and, therefore, it is a fit case where the matter should have been closed at this stage itself without permitting the management to hold fresh inquiry. Sri Ashok Khare disputing the aforesaid submission, reiterated what he had already argued while pressing the appeal preferred by the appellant/ NTPC.
10. We have heard learned Counsel for the parties, perused the record of the two appeals as well as the writ petition and also the written arguments submitted by both the sides and various authorities cited at the bar.
11. The various submissions raised by the learned Counsel for the parties in our view give rise to the following questions required to be answered by this Court:
1. Whether the writ petition itself was maintainable since the petitioner/employee was a workman and had alternative remedy of raising an industrial dispute under the Industrial Disputes Act, 1947 ?
2. Whether the impugned order of punishment has been passed against the petitioner/employee in utter violation of principles of natural justice and the Hon'ble Single Judge is right in holding that the entire proceedings are in violation of principles of natural justice?
3. Whether the Hon'ble Single Judge was right in relegating the matter to disciplinary authority to conduct inquiry afresh from the stage of close of management's witnesses instead of holding the entire disciplinary inquiry afresh?
4. Whether the petitioner/employee is entitled for the relief of reinstatement?
12. We answer the above issues as under:
Issue No. l.
13. Learned Counsel for the appeltent/NTPC relying on the Apex Court judgment in Rajasthan Trading Corporation v. Krishna Kumar (supra), contended that the petitioner being a workman ought to have been relegated to avail statutory alternative remedy of approaching the Labour Court and the writ petition deserved to be dismissed on the ground of alternative remedy. We do not agree. The doctrine of exhaustion of alternative remedy, is not a complete bar in entertaining a writ petition under Article 226 of the Constitution of India. It is a rule of caution followed consistently by the High Court rather than a rule of law but there are various exceptions well recognised to the aforesaid principle. If there is a violation of fundamental right or if action complained of is in utter violation of principles of natural justice or where there is complete lack of jurisdiction or where the vires of statute is involved, the writ petition can be entertained directly without relegating the party to exhaust alternative remedy.
14. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. , it was held that in a given case the High Court may not entertain a writ petition inter alia on the ground of availability of alternative remedy but the said rule is not of universal application. Despite existence of an alternative remedy, the Court may exercise its discretionary jurisdiction of judicial review in cases where the Court or Tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of principles of natural justice or where the vires of the Act is in question and in such matters alternative remedy would not operate as a bar. The same view was reiterated in Sanjana M. Wig. v. Hindustan Petroleum Corporation Ltd. ; State of Himachal Pradesh and Ors. v. Gujarat Ambuja Cement Limited and Ors. (2005) 6 SCC 499 and L.K. Verma v. H.M.T. Limited and Anr. .
15. Moreover, once the writ petition has been entertained and decided on merits, the appellate Court except in rare cases would not interfere therein only on the ground of existence of alternative remedy as held in Kanak (Smt.) and Anr. v. U.P. Avas Evam Vikash Parishad and Ors. and L.K. Verma v. H.M.T. Limited (supra). Further, the facts of this case demonstrate that despite the petitioner having travelled this Court on three occasions earlier, still the Appellant/NTPC failed to comply even the directions of this Court inasmuch as in writ petition No. 39906 of 1999 this Court permitted him to make an application before the authority concerned to grant him opportunity to produce evidence and the authorities were directed to take appropriate decision if such an application is made but the authorities instead of permitting him to adduce any evidence in defence allowed him to submit written brief only and thereafter have passed the order impugned in the writ petition. The matter is lingering for the last almost nine years and, therefore, in our view, the Hon'ble Single Judge was right in entertaining the writ petition and deciding the same on merits instead of relegating the petitioner/employee to avail alternative remedy. Issue No. 1 is answered accordingly.
ISSUE No. 216. From the pleadings and the facts of the case, admittedly, the chargesheet was issued to the petitioner/employee on 5.11.1998 and Inquiry Officer was appointed vide letter dated 2.12.1998. The oral inquiry commenced on 23 rd December 1998. It is said that on the first two dates, namely, 23.12.1998 and 6.1.1999, the petitioner/employee remained absent and did not participate in oral inquiry. Thereafter on various dates, namely, 23.1.1999, 1.2.1999, 6.2.1999, 9.2.1999, 25.2.1999, 27.2.1999, 10.3.1999, 13.3.1999 and 24.3.1999 the oral inquiry was held and the petitioner/employee participated. On 27.3.1999 Smt. Indra Chaturvedi MW 2 deposed her statement. The chart placed on record at page 53 of this appeal, indicates that the appellant/NTPC has shown the petitioner/employee absent in the proceedings dated 27.3.1999 but the minutes of the proceedings of the said date which are on record of the writ petition, at page 95, shows that on the said date, the department examined Smt. Indra Chaturvedi and her cross- examination and re-examination was also completed on the said date, which establish that the petitioner was present on the said date. Again on 2.4.1999 though in the chart prepared by the appellant/NTPC filed along with this appeal, the petitioner has been shown absent but the minutes of the proceedings placed on record of the writ petition at page 96 shows that one Sri Vishwa Roop, D.G.M. was examined on 2.4.1999 and there is nothing to show that the petitioner/employee was absent during the said proceedings. Thereafter the oral inquiry proceeded on 17.4.1999 on which date the petitioner was not present and the Inquiry Officer himself cross-examined Sri Vishwa Roop, Deputy General Manager (MW 3). The oral inquiry next proceeded on 22.4.1999 on which date Smt. Simmi Arora (MW 4) was cross-examined by the petitioner/employee. Thereafter also on various dates the witnesses have been examined and sometimes the petitioner was not present but on 14.6.1999 the petitioner met a serious accident. This fact has been asserted in para 12 (xxiv) of the writ petition as under:
(xxiv) That on 14 th June 1999, the petitioner met with a serious accident which in spite of the continuous treatment rendered the petitioner unable to even sit or walk for about 4 months. During this period of 4 months, while the petitioner, on the advice of doctors, was either confined to bed or was taken from one hospital to another in the ambulances of the respondent company itself and yet kept the Enquiry Officer fully informed of the disability to participate in the enquiry, the respondent No. 7 framed the record of examination of a No. of management witnesses at the back of the petitioner and declared the enquiry as closed without subjecting those management witnesses to cross examination by the petitioner and without giving any reasonable opportunity to the petitioner to produce and examine his defence witnesses and himself
17. The respondents have replied the same in para 30 of the counter affidavit which is reproduced as under:
30. ...
(A) ...
(a) During the last sitting attended by the petitioner, he has been informed that the next date would be 18.06.1999 when the Prosecution Case would be concluded and he would be required to submit his defence case. In spite of being aware of the said date and repeated reminders, petitioner did not attend the enquiry. A telegram from Gorakhpur was received that the petitioner met an accident on 15.06.1999 and has been advised rest for three weeks, no material was placed regarding leaving the Headquarters and meeting with an accident at Gorakhpur. However, 'the Enquiry Officer postponed the next for three weeks and fixed the same 'on 10.07.1999 which was duly informed to Him through telegram. But petitioner again remained absent on ,10.07.1999' due to which the Enquiry Officer adjourned the sitting and re-fixed the same on 22.07.1999, on which date petitioner intentionally remained absent and did not choose to cross-examine the management witnesses. Again on the request of the petitioner, the next date was fixed on 29.07.1999 with the stipulation that
(i) petitioner would bring evidence/material regarding all his previous medical treatment.
(ii)All the relevant papers of the enquiry would be sent to the petitioner by the Presenting Officer.
18. The factum of accident of the petitioner on 14.6.1999, therefore, has not been disputed as such. On the contrary, it is evident that the petitioner was under treatment of the respondents' own hospital and Medical Officer thereat referred the petitioner to All India Institute of Medical Sciences, New Delhi on 29.7.1999 and 30.7.1999. Even the Chief Medical Officer issued a certificate for providing ambulance to the petitioner on 31.7.1999 to transport him to AIMS, New Delhi for his medical examination. The said certificate and medical opinion are on record of the writ petition and their genuineness has not been doubted. It is not the case of the appellant/NTPC that the reports or recommendations of the Medical Officer(s) of the hospital owned by the respondents at Vidyut Nagar,District Gautam Budh Nagar are forged or fictitious and any action was stipulated against them. When the illness of the petitioner was well known to the respondents' own medical staff, it is inconceivable that the Inquiry Officer or the Presenting Officer or the disciplinary authority were not aware of the said situation. Para 30-A (a) of the counter affidavit of the appellant/NTPC also shows that the Inquiry Officer received a telegram on 15.6.1999 from Gorakhpur that the petitioner had met an accident and had been advised rest for three weeks. The Inquiry Officer has not disbelieved this factum, as is evident from the fact that he postponed oral hearing and fixed the matter for 10.7.1999. It was again adjourned for 22.7.1999 and then for 29.7.1999. The information regarding the petitioner's accident, therefore, was available with the Inquiry Officer and, there was nothing to discredit the said information. On 29.7.1999, the petitioner/employee was treated and attended by Dr. Mukul Saxena, Medical - Officer at National Capital Power Project Hospital of the respondents and on 30.7.1999 he referred the petitioner to AIIMS, New Delhi for opinion. Therefore, the petitioner was within the premises of the respondents and was undergoing medical treatment which was not flimsy or concocted reason but was serious enough for the Medical Officer of the Hospital owned by the respondents himself referred the petitioner to AIIMS, New Delhi for opinion. The said recommendation was countersigned by the Chief Medical officer on 30.7.1999 with the endorsement of providing one escort and ambulance to transport him to AIIMS on 31.7.1999. The said documents are available on record as Annexure 15 to the writ petition which have been replied in para 30 of the counter affidavit but have not been controverted. When the petitioner was so ill, it is incomprehensible as to what compelled the Inquiry Officer to proceed with the inquiry and that too on day-to-day basis. If the inquiry would have been deferred to enable the petitioner to regain his health, heaven would not have fallen. We fail to appreciate the logic and rational on the part of the Inquiry Officer to insist for proceeding and fixing oral inquiry on day to day basis despite having information of serious illness of the petitioner. It is not the case of the appellant/NTPC that doubting the recommendation of their Medical officers of their own hospital they required the petitioner to get himself examined from some Medical Board or other hospital. In these circumstances, it cannot be said that the oral inquiry has been conducted against the petitioner giving him adequate opportunity of defence and, in our view the Hon'ble Single Judge has rightly held that the disciplinary proceedings have been conducted in utter violation of principles of natural Justice and are vitiated in law. Issue No. 2 is answered accordingly.
Issue No. 3.
19. This issue has arisen on the appeal preferred by the petitioner/employee from the findings of the Hon'ble Single Judge to the effect that the conduct of the Inquiry Officer shows bias against the petitioner/employee and, therefore, the entire proceedings are tainted with bias and violation of principles' of natural justice. The findings recorded by Hon'ble Single Judge in the judgment are as under:
...The respondents not only violated principles of natural justice but also violated petitioner's basic human right. The conduct of the Inquiry Officer shows bias against the petitioner. The inquiry proceedings were thus tainted with bias and violative of principles of natural justice.
20. It is submitted that once the conduct of the Inquiry Officer itself had been found to be biased, it was not proper for the Hon'ble Single Judge to relegate the proceedings to the management from the stage of close of management's witnesses for the reason that bias vitiates the entire proceedings and consequently, the bias of the Inquiry Officer vitiates the entire oral inquiry conducted by him, and, at the best, if it was necessary at all, to relegate the matter to the management, the appropriate course ought to have been to allow them to hold disciplinary inquiry afresh from the stage of chargesheet. We find substance in the aforesaid submission. As we have also discussed above, the manner in which the Inquiry Officer conducted the proceedings shows his adamant attitude. Despite the knowledge of the petitioner's serious illness and medical treatment going on at the hospital owned by the respondents themselves as well as the AIIMS, New Delhi, yet he continued to proceed with the inquiry and even closed the same. This clearly shows the conduct other than bonafide on the part of Inquiry Officer and, therefore, we do not find any reason to disagree with the said finding recorded by the Hon'ble Single Judge. That being so, since bias vitiates the entire proceedings conducted by such an officer and therefore, the entire oral proceedings stood vitiated. In these circumstances, in our view, the Hon'ble Single Judge instead of permitting the management's to proceed with the inquiry from the stage of closure of management witnesses, ought to have quashed the entire oral proceedings and should have directed the management to commence oral inquiry afresh from the stage of chargesheet. Considering the nature of the charges levelled against the petitioner/employee, however, we do not find any justification in accepting his contention that there was no occasion to permit the management to hold any inquiry whatsoever and the entire matter ought to have been dropped. Issue No. 3 stands answered accordingly.
Issue No. 421. The appellant/NTPC submits that in a case where the punishment order and the inquiry proceedings are found to be vitiated on account of denial of adequate opportunity to the delinquent employee, in such cases the management ought not to have been directed to reinstate the workman and instead, the appropriate course would be to treat him under suspension during the inquiry proceedings and pay only subsistence allowance to him. We find force in this submission. In Managing Director, ECIL v. B. Karunakaran it was held that the question whether an employee would be entitled for back wages and other benefits from the date of his dismissal to the date of his reinstatement should be left to be decided by the departmental authorities in accordance with Rules and in the light of the culmination of the proceedings and their outcome.
22. In V.J. Alexander (supra) while setting aside the order of dismissal on the ground of denial of adequate opportunity, the Court in para 16 held as under:
On a conspectus of the decisions aforestated, we veer around the view that in cases where order of dismissal or removal of a delinquent employee is interfered with on the ground of some procedural lacuna or defect in the domestic enquiry and it is not examined independently by the Court whether the charges against the delinquent employee are established on the material on record which exercise is impermissible in Court's certiorari jurisdiction under Article 226 of the Constitution except, perhaps, where such exercise is considered by the Court convenient and feasible on admitted facts brought before it, the Court should demolish the order of removal or dismissal passed by the departmental authority and remit the matter to the disciplinary authority to follow the procedure from the stage at which fault was committed and take action according to law. Pending such enquiry delinquent employee must be deemed to be under suspension entitled to such subsistence allowance as may be admissible subject, of course, to the fulfilment of the pre-requisite conditions, if any, laid down in the relevant Service Rules/Regulations/Executive Orders. In cases where the Court finds on consideration of the material on record, that the charges levelled against the delinquent employee are not sustainable and he is entitled to be exonerated then in that event, notwithstanding the delay that may have taken place, it may direct reinstatement of the employee with consequential benefits unless the case falls within any exceptional category and the Court finds that the reinstatement of delinquent employee would be prejudicial to the larger interest of the establishment.
23. In Banaras Hindu University, Varanasi and Ors. v. J.N. Tripathi (supra) it was held that " an order for payment of full back wages is not to be passed as a matter of course in every case in which the order of dismissal is set aside or quashed by the High Court."
24. Same is the view taken in writ petition No. 44002 of 2005, Shiv Shanker Saxena v. State of U.P. and Ors. decided on 3.3.2006. Thus, we are also of the view that the Hon'ble Single Judge instead of directing for reinstatement of the petitioner with entitlement of entire arrears of salary, ought to have directed that during the course of disciplinary inquiry the petitioner/employee shall be treated under suspension and paid his subsistence allowance. Further for the period, he had been wrongly dismissed and remained out of job for that period also he should be paid subsistence allowance. The entitlement of the petitioner for full wages shall depend on the outcome of the inquiry whereafter disciplinary authority shall pass appropriate orders in terms of the relevant Standing Orders and law.
25. In the result, both the appeals succeed in part. The judgment of the Hon'ble Single Judge is modified as under:
The writ petition is allowed and the order dated 28.1.2004 impugned therein is set aside. The management employer, however, is at liberty to hold disciplinary inquiry against the petitioner/employee afresh from the stage of chargesheet after affording adequate opportunity of defence to the petitioner and in accordance with law. For the entire period, the petitioner/employee remained out of service pursuant to the dismissal order impugned in the writ petition, he shall be deemed under suspension, entitled for payment of subsistence allowance. In case the management decides to hold the disciplinary inquiry as permitted above, during that period also the petitioner shall remain under suspension and shall be paid subsistence allowance in accordance with law. Payment of arrears of subsistence allowance under this order shall be made to the petitioner within two months. The decision with respect to entitlement of the petitioner for full back wages shall be taken by the management as a result of culmination of inquiry proceedings and its final outcome. Since this matter has already remained pending for almost nine years, we direct that in case, the management holds fresh inquiry, the same shall be concluded within six months from the date of production of a certified copy of this order.
26. In view of the divided success, there shall be no order as to costs.