S.N. Sahay, J. - (1.) This writ petition is directed against the order dated 31.8.1992 (Annexure 2) passed by the Regional Manager, U.P. State Road Transport Corporation, Allahabad imposing the punishment of removal from service on the petitioner with immediate effect. The petitioner was serving on the post of Bus Conductor in the Civil Lines Depot, Allahabad, under the State Corporation. He was served with a charge-sheet containing eight charges, the main charge being that the petitioner was found to be carrying 32 passengers without ticket in a bus on which he was on Conductor's duty. The other charges were that complete entries were not made in the Way-bill, that the petitioner made an attempt to misappropriate committing other Corporation money and was involved in irregularities and doing irregular work. Charges of corruption and misconduct were also levelled against him. The petitioner submitted his explanation to the charge-sheet which was served upon him. The Inquiry Officer after completing the inquiry submitted a report holding that all the charges had been established against the petitioner. The punishing authority issued a notice to the petitioner to show-cause why he should not be removed from service. The petitioner's explanation was taken into consideration and thereafter the impugned order was passed by the Regional Manager removing the petitioner from service.
(2.) It is urged on behalf of the petitioner that the inquiry was held ex parte and reasonable opportunity of being heard was not given to the petitioner and, as such, the impugned order is void and illegal. It will be found from a perusal of the inquiry report which is contained in Annexure 5-A to the writ petition that the complainant was directed to appear before the Inquiry Officer for giving evidence. The complainant was Sri S.R.H. Rizvi, who was posted as Senior Station Incharge, Kunda, District Pratapgarh at that time. The complainant failed to appear before the Inquiry Officer on eleven dates, which were fixed for the purpose and when he appeared on 20.2.1992, the petitioner was not present. However, the Inquiry Officer recorded the evidence of the complainant in the absence of the petitioner and submitted his report on the basis of the explanation submitted by the petitioner in reply to the charge-sheet and the available record. It is obvious that neither the evidence of the complainant was recorded in the presence of the petitioner nor any inquiry was held into the charges in his presence. The findings of the Inquiry Officer were accepted by the punishing authority and the impugned order was accordingly passed. The petitioner has submitted that on 23.2.1993, he gave an application to the Assistant Regional Manager who was conducting the inquiry. It was stated in the application that he could not be present on 20.2.1992 on account of illness. He prayed that the inquiry may be made on some other date. For the same purpose, he made another application dated 4.3.1992. The petitioner has also submitted that a medical certificate was also furnished by him in support of his illness, but these representations did not bear any fruit and as indicated above, the ex parte inquiry report was submitted and the punishment of removal from service was inflicted upon the petitioner. In the counter-affidavit it is stated that the petitioner absented without application on the date fixed namely 20.2.1992 and never informed the Inquiry Officer about his inability to attend the inquiry. It is further stated that the petitioner did not give any application seeking for the extension of time on 20.2.1992 and no application was given by the petitioner to the Department. The allegations of fact made by the petitioner have been totally denied in the counter-affidavit filed on behalf of the Corporation and it is on the basis of this denial that the ex parte inquiry and impugned order of punishment have been justified. I am not inclined to accept the averments made in the counter-affidavit. The petitioner had already submitted a reply to the charge-sheet and had given a counter version about the incident in which 32 passengers were found to be travelling in the bus giving rise to the charges levelled against him. The petitioner says that he made persistent effort to get the ex parte proceedings vacated but in vain. It is highly improbable that the petitioner would have abstained from the inquiry proceedings without any reasonable cause knowing it fully well that the consequences which would follow as a result of the ex parte inquiry may be drastic. It is also interesting to note that after the service of the show-cause notice with regard to the proposed punishment, the Regional Manager passed an order dated 14.7.1992 which is Annexure I to the writ petition reinstating the petitioner in service provisionally and posted him in Civil Lines Depot till final orders were passed in the disciplinary proceedings. That indicates how the mind of the concerned authorities was functioning. If they were not satisfied about the reasonableness of the excuse offered by the petitioner for his absence on the date fixed, there was hardly any occasion to issue an order reinstating the petitioner in service provisionally. It is interesting to note that the order dated 14.7.1992 (Annexure 1) and the impugned order (Annexure 2), both were passed by the same officer namely, Sri A.K. Duwa, Regional Manager. Under the circumstances I am not prepared to believe the averments made on behalf of the opposite parties. I accept the case of the petitioner that reasonable opportunity was not given to the petitioner and the denial of any opportunity being given to him to participate in the inquiry proceedings, vitiated the inquiry report as well as the impugned order. In my opinion, the impugned order is liable to be quashed as being in violation of the constitutional protection available to the petitioner under Article 311(2) of the Constitution.
(3.) Learned counsel for the opposite parties has drawn my attention to certain cases in support of her contention that the writ petition is liable to be dismissed. In Jitendra Kumar v. District Magistrate, Aligarh, 1993 L.C.D. 49 , it has been held that the jurisdiction of the High Court under Article 226 of the Constitution is supervisory in nature enshrining equitable principles, and, as such, where no prejudice is established to the petitioner, the High Court will not be bound to interfere merely because the impugned order suffers from infirmity. In Mahabir Prasad Mittal v. District Magistrate, Bulandshahr and others, 1993 L.C.D. 173 , it was found that the question raised and the dispute to be decided in the writ petition could properly be gone into in a suit and in view of the petitioner having an alternative remedy, declined to exercise its discretion under Article 226. The writ petition was disposed of on the ground of alternative remedy only. In Virendra Kumar Srivastava v. State of UP., 1993 S.C.D. 272 the following view was taken : "The jurisdiction under Article 226 provides an extraordinary remedy. Where there is statutory remedy available, it should be followed. However, no Statute can bar the jurisdiction of this Court available to it under Article 226 of the Constitution. However, where adequate statutory remedies are available, this court would not use its extraordinary power to supplant the jurisdiction of the Tribunals. For this Court to act in case there is an alternative remedy available, it must be shown that the alternative remedy is such that would not be effective or the situation is such where a public injury and vindication of public justice requires recourse to Article 226. Unless some extraordinary circumstance is shown to exist in a particular case to warrant deviation, normally this court would not interfere in case an alternative remedy is available. Where, however, the plea of alternative remedy is taken at a late stage, the parties having already filed their affidavits and the case being heard finally, it may not be expedient to relegate the parties to another forum.";