- (1.) RAKESH Tiwari, J. Heard the learned Counsel for the parties and perused the records.
(2.) THE petitioner joined the service in Varanasi Mandal Vikas Nigam Ltd. Varanasi as a clerk in the year 1978 and was confirmed in the year 1979 after completing the period of probation. He was placed under suspension by the Managing Director vide order dated 14-6-1991 in pursuance of the charge-sheet contained in Annexure-1 to the writ petition. He was neither paid subsistence allowance nor was given copies of documents demanded by him, which, it is alleged, were necessary for submitting his reply to the charge-sheet. Aggrieved, he filed writ petition, wherein a direction was issued vide order dated 8-6- 1992 to the respondents to pay subsistence allowance and to make available the copies of documents sought by the petitioner. In pursuance of the order dated 8-6-1992 copies of the documents were supplied to him on 9-10-1992. He also inspected the records on 15-10-1992. In the mean time Varanasi Mandal Vikas Nigam was closed down with effect from l7-11-1993. However, the enquiry continued and the Inquiry Office submitted his report on 30-12-1992. On 13-1-1993 additional enquiry report was served on the petitioner and FIR was lodged by the respondents against him under Section 409 IPC at P. S. Cantt. Varanasi through Crime No. 30 of 1993. The petitioner is a workman. He alleges that he was not supplied the copies of the documents relied upon by the department and as such the enquiry is defective and is liable to be quashed. It was not denied that he had inspected the records on 15-10-1992 and was supplied copies of the documents on 9-10-1992. This is sufficient compliance of the principles of natural justice and the contention of the petitioner has no force. The Apex Court in Delhi Cloth and General Mills Co. v. Ludh Budh Singh, AIR 1972 SC 1031, in paragraph 60 has laid down the principles for adjudication of dispute before the labour Court in case where the enquiry has been held, (2) enquiry is defective or (3) where no enquiry has been made. Paragraph 60 is quoted below: "60. From the above decisions the following principles broadly emerge.- (1) If no domestic enquiry had been held by the management, or if the management makes it clear that it does not rely upon any domestic enquiry that may have been held by it, it is entitled to straightway adduce evidence before the Tribunal justifying its action. The Tribunal is bound to consider that evidence so adduced before it, on and give a decision thereon. In such a case, it is not necessary for the Tribunal to consider the validity of the domestic enquiry as the employer himself does not rely on it. (2) If the domestic enquiry had been held, it is open to the Management to rely upon the domestic enquiry held by it, in the first instance, and alternatively and without prejudice to its plea that the enquiry is proper and binding simultaneously adduce additional evidence before the Tribunal justifying its action. In such a case no inference can be drawn without anything more, that the management has given up the enquiry conducted by it. (3) When the management relies on the enquiry conducted by it and also simultaneously adduces evidence before the Tribunal, without prejudice to its plea that the enquiry proceedings are proper it is the duty of the Tribunal in the first instance, to consider whether the enquiry proceedings conducted by the management, are valid and proper. If the Tribunal is satisfied that the enquiry proceedings have been held properly and are valid, the question of considering the evidence adduced before it on merits, no longer survives. It is only when the Tribunal holds that the enquiry proceedings have not been properly held, that it derives jurisdiction to deal with the merits of the dispute and in such a case it has to consider the evidence adduced before it by the management and decide the matter on the basis of such evidence. (4) When a domentic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management. However, elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the domestic enquiry. If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management. But if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end. When the preliminary issue is decided against the management and the latter leads evidence before the Tribunal, the position, under such circumstances, will be, that the management is deprived of the benefit of having the finding of the domestic Tribunal being accepted as prima facie proof of the alleged misconduct. On the other hand, the management will have to prove, by adducing proper evidence, that the workman is guilty of misconduct and that the action taken by it is proper. It will not be just and fair either to the management or to the workman that the Tribunal should refuse to take evidence and thereby ask the management to make a further application after holding a proper enquiry and deprive the workman of the benefit of the Tribunal itself being satisfied. On evidence adduced before it that he was or was not guilty of the alleged misconduct. (5) The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of, or asked for by the management, before the proceeding are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper. (6) If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during the pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter. If the Tribunal decides that the domestic enquiry has not been held properly, it is not its function to invite suo motu the employer to adduce evidence before it to justify the action taken by it. (7) The above principles apply to the proceedings before the Tribunal, which have come before it either on a reference under Section 10 or by way of an application under Section 33 of the Act. "
(3.) IN Chandrama Singh v. Managing Director, U. P. Co-operative Union Lucknow and others, 1991 UPLBEC 898, the Full Bench of this Court in Paras 9 and 13 of the judgment has held as under: " (9) Having regard to the above noticed decisions of the Hon'ble Supreme Court of INdia, it is rules that where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully coves the grievance of the petitioner then, unless extra-ordinary or exceptional circumstances exist or the machinery-remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of INdia for redressal of the grievance by the petitioner. . . . . . . . " (13) The decisions of the Hon'ble Supreme Court of INdia and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extra-ordinary jurisdiction under Article 226 of the Constitution of INdia to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious or if it is not established from the material on record that there exist exceptional or extra-ordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that there is no other equally efficacious or adequate alternative remedy than to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution of INdia. The petitioner must furnish material facts and particulars to sustain such a plea. " In Scooters India and others v. Vijay E. V. Elder, 1998 SCC (L-S) 1611, the Hon'ble Supreme Court in Para 2 of the judgment has held as under: " (2 ). . . . . . . . . . . . . . . . . there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial laws are available to the workman. ";