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2010 DIGILAW 3779 (ALL)

Abdul Salam v. State of U. P. and Others

2010-12-21

PRADEEP KANT, RITU RAJ AWASTHI

body2010
(Delivered by Hon'ble Ritu Raj Awasthi, J)—Heard Sri L.K. Pathak, learned counsel for the appellant as well as learned Standing Counsel for the respondents and perused the records.2. This Special Appeal has been filed against the judgment and order dated 31.01.2007 passed in writ petition no.151(SS) of 2003 (Abdul Salam v. State of U.P. & others), wherein the writ petition filed against the punishment order of dismissal has been dismissed being devoid of merit.3. Shorn of unnecessary details, the facts in short are that the appellant-petitioner was appointed on the post of Ahalmad in the Land Acquisition Department in the year 1971 and subsequently promoted as Head Clerk. He was, however, suspended on 27.7.2000, on various grounds including financial irregularities. Against the order of suspension, appellant-petitioner filed writ petition no.3952(S/S) of 2000 (Abdul Salam v. State of U.P. and others). The said writ petition was finally disposed of with a direction to the opposite parties to complete the departmental enquiry within scheduled time frame. The District Magistrate, Lucknow, in compliance of the High Court’s order, appointed Director, Land Acquisition as enquiry officer and directed him to complete the enquiry.4. The appellant-petitioner moved several applications to the authorities for proceeding with the enquiry but with no result. It is the case of the appellant-petitioner that he submitted his written interim reply on 25.01.2001. However, the original papers, which were in possession of the Additional District Magistrate, Land Acquisition, Lucknow, were not handed over to the enquiry officer. The appellant-petitioner submitted application on 03.01.2001 and requested for supply of some documents, which were required by him in connection with the enquiry. However, the opposite party no.2 directed the appellant-petitioner to examine the documents in his office. The opposite parties no.4 and 5 were also directed to provide the documents to the appellant-petitioner. The appellant-petitioner approached all the above authorities to receive copies of the documents but he was informed that the original documents were not available in the office.5. As the enquiry was not being completed as per the directions issued by the High Court, the appellant-petitioner filed contempt petition no.1464(C) of 2001. This Court finally disposed of the contempt petition with a direction to the opposite parties to reinstate the appellant-petitioner in service with immediate effect. As the enquiry was not being completed as per the directions issued by the High Court, the appellant-petitioner filed contempt petition no.1464(C) of 2001. This Court finally disposed of the contempt petition with a direction to the opposite parties to reinstate the appellant-petitioner in service with immediate effect. The opposite parties although reinstated the appellant-petitioner in service vide order dated 11.03.2002 but also filed Special Leave Petition before the Hon’ble Supreme Court, which was decided on 19.07.2002, wherein the order passed by the Contempt Judge was set aside and it was directed that the departmental enquiry be completed within three months’.6. The appellant-petitioner again requested for supply of the documents but his request was not heeded to. The appellant-petitioner was neither served with the preliminary enquiry report dated 30.05.2000 nor the papers annexed with the said report were handed over to him. In this way, the appellant-petitioner was not given all the relevant documents. The appellant-petitioner had submitted a list of 19 witnesses, which he wanted to produce in his support. However, they were not allowed to be examined by the enquiry officer. By order dated 29.8.2002, the enquiry officer had provided last opportunity to submit reply to the charge-sheet, to which the appellant-petitioner had submitted his reply on 5.10.2002 in absence of the documents demanded by him.7. Thereafter, the enquiry officer did not record any oral evidence, rather completed the enquiry in haste without fixing any date, time and place for oral enquiry. The enquiry report was submitted on 17.10.2002, on which show cause notice dated 8.11.2002 was issued to the appellant-petitioner. In response, he appeared before the opposite party no.3 on 11.12.2002. The appellant-petitioner again reiterated his demand for supply of documents. However, appellant-petitioner’s request was turned down again and opposite party no.3 passed the impugned dismissal order on 28.12.2002.8. In the counter affidavit filed before the writ Court, the respondents has taken the stand that all the documents were served on the appellant-petitioner along with the charge-sheet. The appellant-petitioner deliberately wanted to delay the enquiry and therefore, did not want to furnish the reply in time, so that the enquiry may not be completed as per the directions issued by the Court. It was also stated that the enquiry officer did not thought it necessary to examine any witnesses as no witness was relied in support of any charge and only documentary evidence was relied upon. It was also stated that the enquiry officer did not thought it necessary to examine any witnesses as no witness was relied in support of any charge and only documentary evidence was relied upon. The appellant-petitioner had inspected the record in the office of Additional District Magistrate on 20.3.2001 and he was given full opportunity in the departmental enquiry. The enquiry was completed within stipulated time as directed by the Apex Court. The District Magistrate, who is the appointing authority, heard the appellant-petitioner in person and all the grievances raised by him were duly considered. It was also submitted that the writ petition is not maintainable as an alternative remedy for preferring claim petition before the State Service Tribunal was also available, besides, a provision of filing an appeal.9. The learned Single Judge considering the various submissions made by the counsel for the parties, has come to the conclusion that the contention of the appellant-petitioner that he was not furnished with the copies of relevant documents is totally devoid of merit. So far as the contention of the appellant-petitioner that no date, time and place was fixed by the enquiry officer to hold the oral enquiry and examine the evidence in support of the charges are concerned, the learned Single Judge held that the enquiry officer did not examine any witness as there was no need to summon any witness for the simple reason that in support of the charges only the documents were relied upon and the documents were so categorical that they were not required to be proved by any witness.10. Sri L.K. Pathak, learned counsel for the appellant-petitioner has vehemently submitted that it was incumbent upon the enquiry officer to have proved the charges. His submission is that since no date, time and place was fixed by the enquiry officer after submission of the final reply dated 05.10.2002 to the charge-sheet, no oral enquiry was held by the enquiry officer and the enquiry was completed in violation of Rule-7 of the U.P. Government Servants’ (Discipline and Appeal) Rules, 1999. It is further submitted that no effort was made by the respondents to prove the charges, as the enquiry officer had not fixed any date for oral enquiry.11. For convenience Rule 7 of the U.P. Government Servants’ (Discipline and Appeal) Rules, 1999, is quoted as under:7. It is further submitted that no effort was made by the respondents to prove the charges, as the enquiry officer had not fixed any date for oral enquiry.11. For convenience Rule 7 of the U.P. Government Servants’ (Discipline and Appeal) Rules, 1999, is quoted as under:7. Procedure for imposing major penalties- Before imposing any major penalty on a Government servant, an inquiry shall be held in the following manner:(i) The Disciplinary Authority may himself inquire into the charges or appoint an Authority subordinate to him as Inquiry Officer to inquire into the charges.(ii) The facts constituting the misconduct on which it is proposed to take action shall be reduced in the form of definite charge or charges to be called charge-sheet. The charge-sheet shall be approved by the Disciplinary Authority:Provided that where the Appointing Authority is Governor, the charge-sheet may be approved by the Principal Secretary or the Secretary, as the case may be, of the concerned department.(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged Government Servant of the facts and circumstances against him. The proposed documentary evidences and the name of witnesses proposed to prove the same along with oral evidences, if any, shall be mentioned in the charge- sheet.(iv) The charged Government servant shall be required to put in a written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross examine any witness mentioned in the charge-sheet and whether he desire to give or produced evidence in his defence. He shall also be informed that in case he does not appear or file the written statement on the specified date, it will be presumed that he has none to furnish and inquiry officer shall proceed to complete the inquiry ex-parte.(v)The charge-sheet along with the copy of documentary evidences mentioned therein and list of witness and their statements, if any, shall be served on the charged Government Servant personally or by registered post a the address mentioned in the official records in case the charge-sheet could not be served in aforesaid manner the charge- sheet shall be served by publication in a daily newspaper having wide circulation:Provided that where the documentary evidence is voluminous, instead of furnishing its copy with charge-sheet, the charged Government servant shall be permitted to inspect the same before the inquiry officer.(vi)Where the charged Government servant appears and admits the charges, the Inquiry officer shall submit his report to the Disciplinary Authority on the basis of such admission.(vii)Where the charged Government servant denies the charges the Inquiry Officer shall proceed to call the witnesses proposed in the charge- sheet and record their oral evidence in presence of the charged Government servant who shall be given opportunity to cross-examine such witnesses. After recording the aforesaid evidences, the inquiry officer shall call and record the oral evidence which the charged Government servant desired in his written statement to be produced in his defence.Provided that the Inquiry Officer may for reasons to be recorded in writing refuse to call a witness.(viii) The Inquiry Officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provisions of the Uttar Predesh Departmental Inquires (Enforcement of Attendance of Witness and Production of Documents) Act, 1976.(ix) The Inquiry Officer may ask any question he pleases, at any time of any witness or from person charged with a view to discover the truth or to obtain proper proof of facts relevant to charges.(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge-sheet in absence of the charged Government servant.(xi) The Disciplinary Authority, if it considers it necessary to do so, may by an order appoint a Government servant or a legal practitioner, to be known as “Presenting Officer” to present on its behalf the case in support of the charge.(xii) The Government servant may take the assistance of any other Government servant to present the case on his behalf but not engage a legal practitioner for the purpose unless the presenting officer appointed by the Disciplinary Authority is a legal practitioner of the Disciplinary Authority having regard to the circumstances of the case so permits.Provided that this rule shall not apply in following case:(i)Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or(ii) Where the Disciplinary Authority is satisfied, that for reason to be recorded by it in writing, that it is not reasonably practicable to hold an inquiry in the manner provided in these rules; or(iii) Where the Governor is satisfied that, in the interest of the security of the State, it is not expedient to hold an inquiry in the manner provided in these rules.12. It is further submitted that although the Recourse to Evidence Act would not be applicable in the departmental proceedings but this does not mean that without there being any corroborating evidence or without any other material being placed by the department to substantiate the documentary evidence; the charges can be found to be proved. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is required to be authenticated by the person, who has submitted the report. It has been vehemently submitted that the learned Single Judge has failed to appreciate that in the departmental enquiry no efforts were made to prove the charges on the basis of evidence relied in support of the charges and the enquiry officer on its own has come to the conclusion on the basis of documents filed in support of the charges that the alleged charges stand proved against the appellant-petitioner.13. The learned counsel for the appellant-petitioner further contended that the enquiry proceedings were completed in utter disregard to the principles of natural justice, as no opportunity was afforded to the appellant-petitioner to defend himself and refute the alleged charges before the enquiry officer. In support of his contention the learned counsel for the appellant-petitioner has relied on the following judgements:1. 2010 (2) SCC, page 772, State of Uttar Pradesh & others v. Saroj Kumar Sinha and others.2. 2009(1) SCC (L&S) page 394, Union of India & others v. Prakash Kumar Tandon and others.3. 2009 (1) SCC (L&S) page 398, Roop Singh Negi v. Punjab National Bank.4. 2009 LCD, page 990(D/B), Lucknow Kshetriya Grameen Bank v. Devendra Kumar Upadhyay and others.5. 2008 LCD, page 1298 (D/B), Smt. Rajwati Sharma v. U.P. State & others.6. 2005 LCD page 495 (D/B), Govind Lal Srivastava v. State of U.P. and others.7. 2004 LCD, page 770 (D/B), Ambika Prasad Srivastava v. State Public Services Tribunal and others.8. 2001 LCD, page 168 (D/B), Subodh Kumar Trivedi v. State of U.P. and others.14. The learned Standing Counsel on the basis of counter affidavit filed on behalf of the respondents submitted that there is no infirmity or illegality in the impugned judgment and order passed by the learned Single Judge. The learned Single Judge has considered in detail the contentions raised in the writ petition and has rightly come to the conclusion that adequate opportunity of defence was given to the appellant-petitioner in the departmental enquiry and there is no reason for this Court to interfere with the enquiry report or come to the conclusion otherwise. It is also submitted that the learned Single Judge has pointed out that the appellant-petitioner if wanted to raise minutest issue in regard to the departmental enquiry, he should have filed a claim petition before the State Service Tribunal, where his petition could have been dealt with in accordance with law. It has also been observed that the appellant-petitioner had one more alternative remedy of filing departmental appeal against the order of punishment of dismissal from service and since the appellant-petitioner had not justified in skipping of two alternative remedies available to him, this Court had rightly refused to enter into the merits of the finding of the enquiry officer and that of the punishing authority.15. We have heard various submissions made by the learned counsel for the parties.16. We have heard various submissions made by the learned counsel for the parties.16. Before coming to any conclusion, it would be relevant to mention the legal position with regard to the conduction of the departmental enquiry and award of punishment to a delinquent employee. Time and again, the Hon’ble Apex Court as well as this Court has pronounced that in the matter of enquiry for awarding major punishment, no short-cut is permissible. The charge-sheet has to be furnished to the delinquent to apprise him of the charges, which should be specific along with the evidence, both oral and documentary, which the department intends to rely for upholding the charges. In case after service of charge-sheet, the delinquent needs any documents or copy thereof, such prayer has to be considered by the enquiry officer and the documents which are found relevant for enquiry are to be supplied to the delinquent. In case copies of any such document can not be supplied for any valid reason, free access has to be afforded to the delinquent for making inspection of such records. After this stage, the reply is to be submitted by the delinquent within the given time schedule and the enquiry is to proceed, fixing the date, time and place calling the delinquent.17. Normally, the evidence by the department is required to be led first to prove the charges wherein the delinquent is also allowed to participate, who can cross-examine the witnesses, with opportunity of adducing the evidence either in rebuttal or for disproving the charges. It is thereafter that the enquiry officer has to submit its report either saying that any of the charges stand proved or not. There has to be corroborating evidence to prove the charge and without any material being placed by the department to substantiate the documentary evidence, the charge can not be found to be proved. There has to be a corroboration of facts from the documents on record and if any report is also being relied upon, the said report is also required to be authenticated by the person who has submitted the report, therefore, for this purpose the oral enquiry is required to be held for proving the charges.18. In the case of State of Uttar Pradesh and others v. Saroj Kumar Sinha, the Hon’ble Apex Court has observed as under:“26. In the case of State of Uttar Pradesh and others v. Saroj Kumar Sinha, the Hon’ble Apex Court has observed as under:“26. The first inquiry report is vitiated also on the ground that the inquiry officers failed to fix any date for the appearance of the respondent to answer the charges.Rule 7(x) clearly provides as under:“(x) Where the charged Government servant does not appear on the date fixed in the inquiry or at any stage of the proceeding in spite of the service of the notice on him or having knowledge of the date, the Inquiry Officer shall proceed with the inquiry ex parte. In such a case the Inquiry Officer shall record the statement of witnesses mentioned in the charge- sheet in absence of the charged Government servant.”27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.28. An enquiry officer acting as a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.”19. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.”19. In the case of Union of India and others v. Prakash Kumar Tandon and others, while examining the effect of not examining the witnesses, the Hon’ble Apex Court observed as under:“14. In the aforementioned situation, we are of the opinion that the Tribunal as also the High Court cannot be said to have erred in holding that the said Mr. Walia should have been examined as a witness.15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.”20. In the case of Roop Singh Negi v. Punjab National Bank, while emphasizing the importance of principles of natural justice in the matter of departmental enquiry, the Hon’ble Apex Court has observed as under:“14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.15. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.15. We have noticed here-in-before that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.”21. In the case of Smt. Rajwati Sharma v. U.P. State and others, a Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, while emphasizing the need to hold a full fledge departmental enquiry even in case where the charged employee had admitted in his statement the loss of certain files which were in his possession, observed as under:“12.The employee in the instant case, only made a statement of fact, in his reply, about the loss of 14 files. Since the files were misplaced,there could not have been any denial of the said fact by any person, including the charged employee. The question was, whether Shri Krishna was responsible for the loss of file or that he was guilty of any misconduct. It is also possible that in case, enquiry had been held, circumstances might have come to the fore, establishing, that even though the files were misplaced which were supposed to be in the custody of the deceased employee but even then there was some valid defence or mitigating circumstances for not awarding of major punishment or on finding that no fault could be attributed to him, he might have been exonerated.22. In the case of Govind Lal Srivastava v. State of U.P. and others, a Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, has observed as under:“12. It is cardinal principle of law that in a domestic enquiry the charges levelled against the delinquent officer have to be proved by the department itself, that too from the material on record and if necessary, by adducing evidence. In doing so, it is obligatory on the enquiry officer to give opportunity to the delinquent officer to controvert, rebut such evidence or to adduce such evidence, which may falsify or belie the case of the department. In nutshell the delinquent officer has a right to demolish the case of the department or prove his innocence, but in no case the delinquent officer is required to disprove the charges before they are put to proof by the enquiry officer through agency of the department. The letter issued by the erstwhile enquiry officer only says that the petitioner if intends to have a personal hearing, may appear on 20.10.1992 before him. It is difficult to understand as to what the enquiry officer meant by saying personal hearing, whether it included the right to adduce evidence, right of cross-examination and whether it also indicated that any witness would be examined on that date or documentary evidence, which is on record or the record would be looked into and in what respect personal hearing would be done. It is always essential in any proceedings where right of defence or onus of establishing a charge is involved, clear orders and intimation about the date, time or place and the purpose for which the date has been fixed, should be given by the officer, who is holding the enquiry. The delinquent would be hardly knowing as to what reply and what additional facts, he should mention before the enquiry officer, when charges are not being said to be proved and even before the steps being taken for proving the charges. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.13. It is only when the charges are sought to be proved that the delinquent has a right to controvert and rebut the same.13. The procedure of domestic enquiry need not be detailed by us, but it is established principle of law that an enquiry commences when a charge sheet is issued, a reply is required to be submitted by the delinquent officer, the delinquent is at liberty to ask for the documents in case the documents are mentioned in the charge sheet but the copies of the same have not been annexed with the charge sheet, or the documents, on which the charges are likely to be proved and in case copy of some documents can not be supplied then opportunity of inspection of such documents has to be provided. Opportunity of inspection of documents should be provided in a manner so that the charged officer has free access to the record and for which date, time and place has to be fixed. It is only after the aforesaid stages are over, the reply is submitted by the delinquent officer and on receipt of the reply, if the enquiry officer finds that the charges are denied or in other words, they are not accepted, obligation lies upon the enquiry officer to proceed with the enquiry. Even mere non-submission of the reply to the charge sheet or not asking for opportunity of producing witness or evidence would not in itself be sufficient to hold that opportunity was not availed by the delinquent, though given. The enquiry officer, on the date, time and place which is to be fixed by him and intimated to the delinquent officer, has to proceed with the enquiry by first asking the department to prove the charges by adducing such evidence, which may be necessary for the purpose and reply upon the documents, which may be relevant and thereafter has to afford an opportunity to the delinquent to cross-examine the witnesses so adduced or to produce any witness or adduce any evidence in rebuttal. The delinquent officer also has a right to show to the enquiry officer that the evidence, which is sought to be relied upon, is either in admissible or hearsay or could not be relied upon for any other valid reason. The delinquent officer also has a right to show to the enquiry officer that the evidence, which is sought to be relied upon, is either in admissible or hearsay or could not be relied upon for any other valid reason. Of course, if enquiry officer, after receipt of the reply fixes date, time and place and informs the same to the delinquent for appearing and participating in the enquiry but the delinquent even then does not appear, the enquiry can be proceeded in his absence, which may though be an ex-parte enquiry but would not be vitiated on the ground that opportunity was not given or if opportunity was given the same was not availed of, by the delinquent. In a case like this where ex-parte enquiry is to be conducted, the enquiry officer is not still absolved of getting the charges proved from the evidence/material on record.23. In the case of Ambika Prasad Srivastava v. State Public Services Tribunal, Lucknow and others, the Division Bench of this Court, in which one of us (Justice Pradeep Kant) was a member, while emphasizing the importance of principles of natural justice in the departmental enquiry held as under:“In view of the admitted fact that no opportunity was afforded to the petitioner to participate in the enquiry and he was not informed about the date, time and place for holding the enquiry nor was supplied the documents which were demanded by him, and the enquiry report was based simply on the reply submitted by the petitioner, we find that the view taken by the Tribunal otherwise, is palpably erroneous. The entire proceedings are vitiated for violation of principles of natural justice and not affording opportunity to the petitioner.”24. In the present case it is evident from the records that the enquiry officer during the course of enquiry by order dated 03.07.2002 had come to the conclusion that it is necessary to provide opportunity of hearing to the delinquent employee and for that purpose had fixed 15.07.2002. However, on 15.07.2002 enquiry could not be held, so another date was fixed. Thereafter certain dates were fixed by the enquiry officer and it was by an order dated 29.8.2002, the enquiry officer had observed that no other document is required to be given to the delinquent employee, therefore, 07.09.2002 was fixed for submitting reply by the delinquent. However, on 15.07.2002 enquiry could not be held, so another date was fixed. Thereafter certain dates were fixed by the enquiry officer and it was by an order dated 29.8.2002, the enquiry officer had observed that no other document is required to be given to the delinquent employee, therefore, 07.09.2002 was fixed for submitting reply by the delinquent. It is admitted fact as borne out from the enquiry report dated 17.10.2002 that the delinquent employee had submitted his written reply on 05.10.2002. However, from the perusal of record it appears that no date, time and place was fixed by the enquiry officer for holding oral enquiry after submission of the reply to the charge-sheet by the delinquent employee and the entire enquiry proceedings were completed on the basis of charge-sheet and the reply submitted by the delinquent employee, relying on the documentary evidence submitted in support of the alleged charges.25. The learned Single Judge in the impugned judgment has come to the conclusion that the enquiry officer did not examine any witnesses as there was no need to summon any witness for the simple reason that in support of the charges, only the documents were relied upon and the documents were so categorical that they were not required to be proved by any witness. It has been further observed by the learned Single Judge that if we examine the report of the enquiry officer, indeed, the documentary evidence seems to be so whelming that it was not obligatory for the enquiry officer to have called any witness in support of the charges.26. The learned Single Judge, however, did not take into consideration that if the witnesses were not required to be examined in support of the charges, even then it was incumbent upon the enquiry officer to have fixed the date, time and place after submission of the reply to the charge-sheet by the delinquent for holding oral enquiry in order to appreciate the evidences filed in support of the charges in presence of the delinquent employee and call upon the department to prove the alleged charges. There is no denial about the fact that such exercise was not done by the enquiry officer in the present case.27. There is no denial about the fact that such exercise was not done by the enquiry officer in the present case.27. In this view of the matter, we are of the considered opinion that the departmental enquiry conducted against the appellant-petitioner on the basis of which the punishment of dismissal from service was awarded, was not held in accordance with law as propounded by the Apex Court as well as this Court, as discussed above.28. So far as the question of alternative remedy is concerned, suffice it to mention that it is not an absolute bar. It has been the consistent view of the Apex Court as well as this Court that in case of violation of principles of natural justice, the writ petition in the High Court under Article 226 of the Constitution shall be maintainable. There is another aspect of the matter that this writ petition was filed on 8th January, 2003, which was entertained by the this Court by inviting counter affidavit. After a considerable long period it would not be appropriate to hold that the writ petition was not maintainable as the petitioner had not availed the alternative remedy of filing departmental appeal or a claim petition before the State Public Service Tribunal. After a considerable long period it would not be appropriate to hold that the writ petition was not maintainable as the petitioner had not availed the alternative remedy of filing departmental appeal or a claim petition before the State Public Service Tribunal. Our view find support in the decision of this Court in the case of Subodh Kumar Trivedi v. State of U.P. and others, reported in 2001 (19) LCD, 168, wherein this Court has discussed in detail the concept of entertaining the writ petition and summarized the propositions broadly flowing from the catina of decisions, which are as under:“(i) Statutory alternative remedy is not an absolute bar for the High Court to entertain a writ petition under Article 226 of the Constitution.(ii) Refusal to entertain a writ petition on existence of statutory alternative remedy is a self imposed restriction for which following considerations weigh namely;(a) alternative remedy is adequate, efficacious and speedy.(iii) The High Court can try issues of fact but may not entertain petition where disputed question of facts have to be determined and in such cases the petitioner may be relegated to the statutory alternate forum.(iv) If a writ petition has been entertained despite there being a statutory remedy, which may be adequate, and the said petition has remained pending for considerable period then there would be little justification for relegating the petitioner to the alternative remedy, unless thee are valid and cogent reasons for doing so.(v) Even if there exists an adequate alternative, efficacious speedy remedy in the alternative forum, the High Court may entertain the writ petition in the following circumstances.(a)for enforcement of any of the fundamental rights(b) where there has been a violation of principle of natural justice(c) where the order or proceedings are wholly without jurisdiction or(d) the vires of the Act is challenged.Lastly it depends upon the facts and circumstances of each case as to whether the discretion of entertaining the writ petition in the teeth of the Statutory remedy has to be exercised or not.” (Emphasis supplied)29. In view of the above, the impugned judgment and order dated 31.01.2007 passed by the learned Single Judge in writ petition no.151(SS) of 2003 is not sustainable and it is hereby set aside. The punishment order dated 27.12.2002 passed by the opposite party no.3, is also liable to be quashed, which is hereby quashed.30. In view of the above, the impugned judgment and order dated 31.01.2007 passed by the learned Single Judge in writ petition no.151(SS) of 2003 is not sustainable and it is hereby set aside. The punishment order dated 27.12.2002 passed by the opposite party no.3, is also liable to be quashed, which is hereby quashed.30. Since, it has been informed by the learned counsel for the appellant-petitioner that at the time of filing of the special appeal, the appellant-petitioner was aged about 58 years and he must have attained the age of superannuation and the allegations relating to which, punishment was awarded relates to the period of his posting as Head Clerk in the year 2000, therefore, the appellant-petitioner shall be entitled to be given the continuity of service and other service benefits. However, he shall not be paid the arrears of salary for the period from 27.12.2002 till the date of superannuation as he had not worked during that period.31. With the aforesaid observations, the special appeal is allowed.(Spl. Appeal Allowed)_____________