# Yatendra Kumar v. State of U.P. & Ors

- **Citation:** (2022) 3 ILRA 564
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-21
- **Case number:** Writ A No. 4528 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yatendra-kumar-v-state-of-u-p-ors-47591
- **Pages:** 11

## Headnote

A. Service Law - UP State Road Transport
Corporation
Employees
(other
than
officers) Service Regulations, 1981 - Reg.
64 - Disciplinary enquiry - Removal from
service - Validity - Charges denied -
Documents which had a direct bearing on
the charge levelled against the petitioner,
had not been supplied to him - Effect -
Held, the enquiry proceeding has been
conducted in violation of Regulation 64(2)
and 64(3) of Regulation, 1981 (Para 24
and 25)
B. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy -
When
writ
power
can
be
exercised,
explained - Violation of natural justice -
Effect - 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 - Held further, 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. (Para 28 and 34)
C. Constitution of India - Article 14 -
Principle of natural justice - Orders
passed are cryptic and bereft of reasons -
Effect - Held, the impugned orders have
been passed in violation of principles of
natural justice. (Para 31)
D. Constitution of India - Article 14 -
Principle of natural justice - Necessary
documents demanded by the petitioner to
submit his defence have not been supplied
to the petitioner - Effect - Held, the
impugned orders have been passed in
violation of principles of natural justice.
(Para 31)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

564 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Accordingly, the writ petition is
allowed.
----------
(2022)03ILR A564
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.12.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ A No. 4528 of 2019

Yatendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri
Samir
Sharma,
Sri
Ajay
Kumar
Srivastava

Counsel for the Respondents:
C.S.C., Sri Sunil Kumar Misra

A. Service Law - UP State Road Transport
Corporation
Employees
(other
than
officers) Service Regulations, 1981 - Reg.
64 - Disciplinary enquiry - Removal from
service - Validity - Charges denied -
Documents which had a direct bearing on
the charge levelled against the petitioner,
had not been supplied to him - Effect -
Held, the enquiry proceeding has been
conducted in violation of Regulation 64(2)
and 64(3) of Regulation, 1981 (Para 24
and 25)
B. Constitution of India - Article 226 - Writ
- Maintainability - Alternative remedy -
When
writ
power
can
be
exercised,
explained - Violation of natural justice -
Effect - 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 - Held further, 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. (Para 28 and 34)
C. Constitution of India - Article 14 -
Principle of natural justice - Orders
passed are cryptic and bereft of reasons -
Effect - Held, the impugned orders have
been passed in violation of principles of
natural justice. (Para 31)
D. Constitution of India - Article 14 -
Principle of natural justice - Necessary
documents demanded by the petitioner to
submit his defence have not been supplied
to the petitioner - Effect - Held, the
impugned orders have been passed in
violation of principles of natural justice.
(Para 31)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Ravi Yashwant Bhoir Vs Collector; (2012) 4
SCC 407
2. Satwati Deswal Vs St. of Har. & Ors.; (2010)
1 SCC 126
3. Civil Appeal No.5728 of 2021; M/s Magadh
Sugar & Energy Ltd. Vs The State of Bihar &
Ors.
4. Allahabad Bank & anr. Vs Krishna Narayan
Tewari; (2017) 2 SCC 308
(Delivered by 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
3 All. Yatendra Kumar Vs. State of U.P. & Ors.
565
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
566 INDIAN LAW REPORTS ALLAHABAD SERIES
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)
3 All. Yatendra Kumar Vs. State of U.P. & Ors.
567

(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
568 INDIAN LAW REPORTS ALLAHABAD SERIES
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
3 All. Yatendra Kumar Vs. State of U.P. & Ors.
569
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 crossexamine 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 w

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
570 INDIAN LAW REPORTS ALLAHABAD SERIES
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
3 All. Yatendra Kumar Vs. State of U.P. & Ors.
571
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
572 INDIAN LAW REPORTS ALLAHABAD SERIES
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 nonexhaustion 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
3 All. Yatendra Kumar Vs. State of U.P. & Ors.
573
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. Nonapplication 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
574 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
----------
(2022)03ILR A574
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.03.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Writ A No. 4813 of 2021

Dr. Sonal Sachadev Aurora ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Hari Prasad Gupta

Counsel for the Respondents: