Allahabad High Court
Yatendra Kumar vs State Of U.P. And 7 Others on 21 December, 2021
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 01.10.2021 Delivered on 21.12.2021 Court No. - 36 Case :- WRIT - A No. - 4528 of 2019 Petitioner :- Yatendra Kumar Respondent :- State of U.P And 7 Others Counsel for Petitioner :- Samir Sharma Counsel for Respondent :- C.S.C., Sunil Kumar Misra Hon'ble Saral Srivastava,J.
1. Heard Sri Samir Sharma, Advocate assisted by Sri Ajay Kumar Srivastava, learned counsel for the petitioner, and Sri Sunil Kumar Mishra, learned counsel for the Transport Corporation.
2. The petitioner by means of the present writ petition has assailed the order of punishment dated 05.11.2012, the appellate order dated 10.12.2014, and the revisional order dated 13.12.2018.
3. The brief facts of the case are that the petitioner was a conductor and was posted at Kaushambi, Ghaziabad region. The petitioner was issued a charge sheet dated 14.06.2010, in which there are two charges against the petitioner which read as under:
"(i) On 21.04.2010 the petitioner was deputed on A.C. Sleeper Bus No. UP 11 T-1120 of Kaushambi Depot of Ghaziabad Region of the Corporation plying on Delhi-Lucknow route. The duty slip no.236385 had been issued to the petitioner at about 20:10 hours for plying aforesaid Bus for 1060 K.Ms. Alongwith the petitioner, Sri Jitendra Kumar (Driver) and Sri Virendra Singh (spare driver) were on duty on the aforesaid bus. On 22.04.2010, at about 14:30 hours the aforesaid bus was taken to Kesarbagh Depot for filling diesel. One Anil Kumar Sharma (conductor) Kaushambi Depot who was issued duty slip on 21.04.2010 on Haridwar route for Bus No. UP 14 AE/9402, submitted an application in petitioner's name to the Station Incharge, Kesarbagh Depot for filling diesel. When the Station Incharge asked Sri Anil Kumar Sharma for his identity card, he could not show the same and instead by making an excuse, slipped away. The Station Incharge, Kesarbagh Depot thereafter, on an application of the driver of the bus, got 120 liters diesel filled up in the bus and provided the conductor and driver of Kesarbagh Depot duty slip no.069611 for plying of the bus on the return journey.
The petitioner in order to conceal the aforesaid misconduct, in collusion with the driver, reported that the bus was defective due to which it could not be plied. Thereafter on 23.04.2010, the petitioner submitted an application at 10:30 hours to the Station Incharge, Kesarbagh Depot giving the details of the defect in the bus.
The charge leveled against the petitioner is that on 22.04.2010, the petitioner in an unauthorised manner and collusion with another conductor, plied A.C. Sleeper Bus No. UP 11 T-1120 and tried to conceal the aforesaid fact by falsely reporting the bus being defective. Due to which bus was not plied for 48 hours, the Corporation suffered loss and the passengers reported inconvenience.
(ii) Further (according to the report of Station Incharge Kaushambi) on 02.03.2010, 07.03.2010, 08.03.2010, 13.03.2010, 21.03.2010, 22.03.2010, 24.03.2010, 25.03.2010, 05.04.2010, 06.04.2010, 10.04.2010, and 17.04.2010, the waybills used by the petitioner were examined and it was found that handwriting on the waybills was of different persons, which indicated that the petitioner had allowed some unauthorized person to perform the duty of conductor on the aforesaid dates, because of which the load factor achieved by the bus was very low.
Thus, the petitioner had allowed an unauthorized person to ply the Corporation bus on the aforesaid dates in a preplanned manner and thereby embezzled Corporation revenue causing loss to the Corporation."
4. The petitioner submitted a reply to the charge sheet on 30.09.2010 denying all the charges. The case of the petitioner in the reply was that on 22.04.2010, at 14:30 hours the bus had developed a technical snag in AC about 20 Kms. before Lucknow due to which, the passengers of the bus were transferred and sent by another bus. The empty bus was taken, thereafter, to the Kesarbagh workshop where the petitioner had submitted an application for filling up diesel in the bus. The petitioner's identity card was asked for, but as he did not have an identity card with him, he showed his slip no. 236385 with the request to fill up diesel and went to search for the private mechanic to get the defect in the air conditioner of the bus rectified. According to the petitioner, he had written on the back of the duty slip the defect in the air conditioner of the bus. He, thereafter, contacted Kaushambi depot on the telephone and informed him about the defect in the air conditioner of the bus. He was told that the help would come from Kanpur for rectification of the air conditioner and Shyam Service Centre, Kanpur has been contacted for that purpose.
5. The further contention of the petitioner was that on 22.04.2010, he could not find any private mechanic, he came back to Kesarbagh Bus Station at about 23:00 hours and went off to sleep. On 23.04.2010, the petitioner met the Station In-charge at about 10:30 hours, the petitioner was issued another duty slip at about 17:00 hours and he was directed to take the bus to Alambagh Bus Stand where at about 22:00 hours the mechanic had arrived from Kanpur and defect in the bus was rectified by 02:00 hours on 24.04.2010. The next trip was on 24.04.2010 at 21:30 hours for which the bus was booked on the booking counter and was taken to Delhi where it reached on 25.04.2010 wherefrom it was taken to Kaushambi workshop at 11:00 hours and the cash was deposited by the petitioner.
6. The petitioner in his reply has also specifically stated that the entire evidence mentioned in the charge sheet had not been furnished to him. The petitioner on 19.07.2010 submitted an application before the enquiry officer requesting him to supply several documents having a material bearing on the two charges of misconduct leveled against him which the petitioner needs for refuting charges against him. As regards the first charge the following documents were sought by the petitioner:
(i) Copy of letter/application of Sri Anil Kumar Sharma (Conductor) submitted before the Station In-charge, Lucknow on 22.04.2010.
(ii) Copy of the duty slip no. 6961 and the name of the driver/conductor of Kesarbagh Depot who had allegedly taken the bus back.
(iii) Copy of the petitioner's letter dated 23.04.2010 submitted before the Station In-charge, Kesarbagh Depot.
(iv) Copy of the documents as mentioned in the 20th line of first paragraph of the charge sheet.
(v) The statement of the employee who had provided technical help from Kanpur.
(vi) Copy of the defect as noted by driver of A.C. Sleeper Bus No. UP 11 T-1120.
In respect of second charge the following two documents were sought:
(i) The copies waybills as used by the petitioner on various dates (12 dates)
(ii) Details of load factor given by other conductors of the Depot during the period/on the dates, it is alleged that the petitioner had given very low load factor from 08.03.2010 to 18.04.2010.
7. The petitioner on 31.08.2010 informed the enquiry officer that none of the documents sought by him through his letter dated 17.08.2010 had been furnished to him.
8. In the departmental enquiry one Pramod Tripathi, Station In-charge Kesarbagh gave his statement. The petitioner was allowed to cross-examine Pramod Tripathi. In the cross-examination, he admitted that he did not remember that on 22.04.2010 whether the petitioner or somebody else had approached him with the application for getting diesel filled in the bus. One Hakim Singh, Traffic Superintendent, Kaushambi Depot also appeared before the enquiry officer on 29.04.2011 and was cross-examined by the petitioner, he admitted that the load factors given by other conductors were less than the petitioner.
9. The petitioner submitted his statement of defence before enquiry officer on 18.05.2011. The enquiry officer found the charge of misconduct against the petitioner proved and submitted the enquiry report to the disciplinary authority. The petitioner was, thereafter, issued a notice to show cause as to why his unpaid pay for suspension period be not forfeited along with other dues and he may not be removed from service.
10. The petitioner on 22.02.2012 submitted a reply to the show cause notice dated 28.12.2011. The Regional Manager, Ghaziabad-respondent no.6 being dissatisfied with the reply of the petitioner passed on order dated 05.11.2012 punishing removal from service and forfeiture of unpaid pay of suspension period and other dues of the petitioner. The petitioner, thereafter, preferred a departmental appeal which was also dismissed, and the revision preferred against the said order was also dismissed by order dated 13.12.2018.
11. In the counter affidavit filed by the respondent, the main plea which has been taken is that the petitioner has an alternative remedy by raising an industrial dispute before the Labour Court. Besides the above, the respondent has denied the assertions made in the writ petition.
12. Challenging the aforesaid impugned orders, learned counsel for the petitioner contended that the order of disciplinary authority suffers from the manifest error of law and has been passed in violation of principles of natural justice. In elaborating the said argument, he submitted that the petitioner has demanded documents by letter dated 19.07.2010 and 31.08.2010, but those documents which had a direct bearing upon the charges levelled against the petitioner were not supplied to the petitioner and hence, has caused serious prejudice to the petitioner. Thus, the orders impugned are not sustainable.
13. Learned counsel for the petitioner further contended that the petitioner has requested for examining several witnesses in defence which though have been noted by the enquiry officer in the enquiry report but the enquiry officer did not permit the petitioner to examine those witnesses. Accordingly, it is submitted that the departmental enquiry was conducted in violation of Regulation 64 (2) and 64 (3) of U.P. State Road Transport Corporation Employees (Other than Officers) Services Regulations, 1981.
14. Learned counsel for the petitioner further urged that the reply of the petitioner was not considered either by the disciplinary authority or the appellate authority or the revisional authority and as the impugned orders are bereft of reasons, therefore, it is evident that the impugned orders lack complete application of mind by the authorities. Lastly, he contends that about nine years have passed from the date of removal from service and the petitioner is due to retire shortly, and it would be harsh upon the petitioner if the matter is remitted to the authority concerned to consider afresh.
15. Per-contra, learned counsel for the respondent corporation would contend that the petitioner has the alternative remedy to approach industrial tribunal as the issues which arise for adjudication are disputed question of fact, and as such he submits that the writ petition is liable to be dismissed on the ground of alternative remedy. It is further contended that the enquiry officer has considered every aspect of the matter with precision, and after considering evidence and material on record held that both the charges against the petitioner are proved. It is further contended that the principles of natural justice have been followed, and hence this is not a case that warrants interference by this Court under Article 226 of the Constitution of India.
16. To the aforesaid contention, learned counsel for the petitioner submits that where the order impugned has been passed without adhering to the principles of natural justice, the alternative remedy is not a bar to entertain the writ petition. He further submits that even otherwise if the writ petition is pending for long and pleadings have been exchanged between the parties, the writ petition may be decided on merit, instead of the petitioner being relegated to the alternative remedy.
17. I have heard learned counsel for the petitioner and learned Standing Counsel for State-respondents.
18. The two charges levelled against the petitioner have been extracted above. The petitioner in reply to those charges has denied the charges and has sought necessary documents which had bearing on the charges by letter dated 19.07.2010 and 31.08.2010. The petitioner in this respect has made necessary averment in paragraphs no. 11, 13, 30, and 32 of the writ petition. The respondent has replied to the aforesaid paragraphs in paragraphs no. 13 and 32 of the counter affidavit which is reproduced herein below:
"13. That the contents of paragraph no.11, 12, and 13 of the Writ Petition are matter on record and averment contrary to record are denied and in reply thereto it is stated that the documents demanded by the petitioner were supplied as admitted in paragraph no.12 of the Writ Petition.
32. That the contents of paragraphs no.30, 31, and 32 of the Writ Petition are incorrect and misconceived hence not admitted and denied, and in reply thereto it is stated that the and ample opportunity of hearing and leading evidence including the cross-examination of reporters and explanation was afforded to the petitioner and the enquiry officer has concluded the enquiry at the satisfaction of the petitioner. Both the reporters (Sri Pramod Tripathi and Sri Hakim Singh) were examined in the presence and hearing of the petitioner and cross-examined by the petitioner also. It is stated that the documents demanded by the petitioner were supplied."
19. The perusal of paragraph no. 13 and 32 of the counter affidavit reveals that the fact that the petitioner has demanded documents by two letters dated 19.07.2010 and 31.08.2010 have not been denied by the petitioner. It is only stated that the documents demanded by the petitioner were supplied. The averments in this regard are vague inasmuch as the respondent has not brought on record any evidence and material to demonstrate that the documents demanded by the petitioner have been supplied to him. The averments in paragraph no. 13 of the counter affidavit that the petitioner has admitted in paragraph 12 of the writ petition that he was supplied the documents are incorrect inasmuch as the petitioner in paragraph 12 in the writ petition has stated that in response to the letter dated 17.08.2010, he was informed that all the documents have already been furnished to him. The assertion made in paragraph 12 of the writ petition is not the admission by the petitioner regarding the furnishing of documents demanded by him by letter dated 17.08.2010.
20. Averments made in paragraph 32 of the counter affidavit are also general in nature. At this juncture, it would be relevant to refer to the letter of the petitioner dated 31.08.2010 wherein he has stated that in absence of the supply of the documents demanded by him by letter dated 19.07.2010, he is not able to furnish a reply to the charge sheet.
21. At this point, it would be apt to have a glance at Regulation 64 of the U.P. State Road Transport Corporation Employees (other than officers) Service Regulations, 1981 which reads as under:
"64. (1) Without prejudice to the right to terminate the services in accordance with regulation 29 no order, (other than order based on facts which had led to his conviction in a criminal court) of dismissal, removal or reduction in a rank, which includes, reduction to a lower post or time scale or to a lower stage in the time scale but excludes the reversion to a lower post of a person who is officiating on a higher post, shall be passed against an employee unless he has been afforded adequate opportunity of defending himself.
64 (2) The ground on which it is proposed to take action shall be reduced in the form of a definite charge or charges which along with the evidence proposed to be relied upon in support of the charge shall be communicated to the person charged and he shall be required, with in a reasonable time, to put in a written statement of his defence and to state whether he desires to examine or cross-examine any witness and whether he desires to be heard in person. He shall also be informed that, in case he does not file a written statement of his defence, it will be presumed that he has none to furnish and orders will be passed ex-parte.
64(3) If the employee desires or the Enquiry Officer considers it necessary, an oral inquiry shall be held in respect of such allegations as are not admitted. At the enquiry such oral evidence shall be heard as the Enquiry Officer considers necessary, the person charged shall be entitled to cross-examine the witnesses, to give evidence in person and to have such witnesses called as he may wish, provided that the officer conducting the enquiry may for sufficient reasons to be recorded in writing refuse to call or examine any witness."
22. Regulation 64(2) of Regulations, 1981 casts a duty upon the employer that the evidence proposed to be relied upon in support of charge shall be communicated to the person charged and he shall be given reasonable time to submit his defence and to state whether he desires to examine or cross-examine any witness and whether he desires to be heard in person.
23. Regulation 64(3) of Regulation, 1981 also casts a duty upon the enquiry officer to permit the charged employee to cross-examine the witness, to give evidence in person, and to have such witnesses called as he may wish. It further provides that the officer conducting the enquiry may refuse to call for or examine any witness for sufficient reasons to be recorded in writing.
24. In the instant case, from the facts stated above it is evident that the petitioner had demanded several documents which had a direct bearing on the charge levelled against the petitioner, and non-supply of those documents has cast serious prejudice to the petitioner inasmuch as the petitioner had needed those documents to enable him to submit reply and defend his case properly.
25. From the facts as narrated above it is evident that documents demanded by the petitioner had not been supplied to him and hence, the enquiry proceeding has been conducted in violation of Regulation 64(2) and 64(3) of Regulation, 1981.
26. Further order passed by the disciplinary authority dated 05.11.2012 demonstrate that the disciplinary authority has narrated facts in detail but while holding the petitioner guilty on the charges has recorded one line finding "that despite giving ample opportunity of hearing the petitioner could not prove that the charges against him are false." Similarly, the order passed by appellate authority as well as the order passed by revisional authority is also bereft of reasons.
27. The Apex Court in the case of Ravi Yashwant Bhoir Vs. Collector, (2012) 4 SCC 407 has held that the reasons are the bridge between facts and conclusion and are also one of the facets of natural justice. Paragraphs no. 38 and 42 of the judgment are reproduced herein as under:
"38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.
42. In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision."
28. Now coming to the contention of the learned counsel for the respondents that the petitioner has the alternative remedy of appeal, it is worth noticing the catena of judgments of the Apex Court wherein the Apex Court has carved out an exception where despite there being an alternative remedy, this Court under Article 226 of the Constitution of India can exercise its power to entertain the writ petition. The exception carved out are where there is a violation of principles of natural justice, inherent lack of jurisdiction, challenge to an act, and any provision or for enforcement of fundamental rights.
29. The Apex Court in the case of Satwati Deswal Vs. State of Haryana & Ors., (2010) 1 SCC 126 has repelled the similar objection where the termination order was passed in violation of principles of natural justice. Relevant Paragraph 5 and 7 of the judgment are reproduced herein as under:
"5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy is available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question.
7. Such being the position and in view of the admitted fact in this case that before termination of the services of the appellant, no disciplinary proceeding was initiated nor any opportunity of hearing given to the appellant. It is clear from the record that the order of termination was passed without initiating any disciplinary proceedings and without affording any opportunity of hearing to the appellant. In that view of the matter, we are of the view that the writ petition was maintainable in law and the High Court was in error in holding that in view of availability of alternative remedy to challenge the order of termination, the writ petition was not maintainable in law."
30. In the case of M/s Magadh Sugar & Energy Ltd. Vs. The State of Bihar & Ors. in Civil Appeal No.5728 of 2021, a similar view has been taken by the Apex Court. Relevant paragraph no. 19 of the judgment is reproduced herein as under:
19. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh & Ors. a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;
(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
(emphasis supplied) The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Assistant Commissioner of State Tax v. M/s Commercial Steel Limited. In State of HP v. Gujarat Ambuja Cement Ltd. this Court has held that a writ petition is maintainable before the High Court if the taxing authorities have acted beyond the scope of their jurisdiction. This Court observed:
"23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO [(1970) 2 SCC 355: AIR 1971 SC 33] that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition."
31. As it is held above the impugned orders have been passed in violation of principles of natural justice for two counts; the necessary documents demanded by the petitioner to submit his defence have not been supplied to the petitioner. Secondly, all the orders are cryptic and bereft of reasons. This Court finds that the objection raised by the respondents that the writ petition should be dismissed on the ground of alternative remedy is not sustainable in law.
32. As this Court has already held the orders impugned are not sustainable, therefore, the order of punishment dated 05.11.2012, the appellate order dated 10.12.2014, and the revisional order dated 13.12.2018 are hereby quashed.
33. Now coming to the question as to whether in the facts of the present case it would be appropriate to remand the matter back. In the present case, the charge sheet was issued to the petitioner in the year 2010 and disciplinary proceedings were concluded in the year 2012 by order dated 05.11.2012 imposing the punishment of dismissal. Thereafter, the appeal preferred by the petitioner was decided in the year 2014 and revision in the year 2018. Thereafter, the petitioner preferred the present writ petition challenging the aforesaid impugned orders.
34. More than nine years have passed since the petitioner is out of employment. Considering the fact that the petitioner would retire in a few years, this Court believes that it would be harsh upon the petitioner if the matter is again remanded to the authorities concerned. In the case of Allahabad Bank & Anr. Vs. Krishna Narayan Tewari, (2017) 2 SCC 308 in an appeal preferred by the Allahabad Bank the Apex Court held that the order passed by the disciplinary authority and appellate authority was in violation of principles of natural justice and modified the order of the High Court to the extent that the respondent-employee shall be entitled to only 50% of salary from the date of his removal from service till the date of superannuation. Relevant paragraphs no. 7, 8, and 10 of the judgment are reproduced herein as under:
"7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the disciplinary authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told, the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.
8. There is no quarrel with the proposition that in cases where the High Court finds the enquiry to be deficient, either procedurally or otherwise, the proper course always is to remand the matter back to the concerned authority to redo the same afresh. That course could have been followed even in the present case. The matter could be remanded back to the Disciplinary Authority or to the Enquiry Officer for a proper enquiry and a fresh report and order. But that course may not have been the only course open in a given situation. There may be situations where because of a long time-lag or such other supervening circumstances the writ court considers it unfair, harsh or otherwise unnecessary to direct a fresh enquiry or fresh order by the competent authority. That is precisely what the High Court has done in the case at hand.
10. The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court's direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified."
35. In the facts of the present case, this Court also finds that as the petitioner is out of employment for about nine years and the disciplinary proceedings were not as per law, therefore, it would be in the interest of justice that the petitioner be reinstated in service with 50% back wages and all consequential benefits.
36. The writ petition is allowed with no order as to cost.
Dated:21.12.2021 Mohit Kushwaha (Saral Srivastava, J.)