S.U. Kamdar, J.
1. Both these writ petitions challenge the common awards passed in Part I and II by the Presiding Officer of the Central Government Industrial Tribunal (hereinafter referred to as 'CGIT') dated 2-11-1999 and 30-3-2002.
2. The present two writ petitions are arising from the said awards passed by the Presiding Officer of the CGIT. For the sake of brevity, the petitioner i.e. The Board of Trustees of the Port of Mumbai in Writ Petition No. 671 of 2002 and Respondent No. 1 in Writ Petition No. 102 of 2004 is hereinafter referred to as the Petitioner Management and Ramkrishna Shivaram Gadekar, the petitioner in Writ Petition No. 102 of 2004 and Respondent No. 1 in Writ Petition No. 671 of 2002 is hereinafter referred to as the respondent-employee.
3. The factual matrix of the present case briefly enumerated is as under :--
The respondent-employee was appointed as a driver by the petitioner-management on 1-1-1983. It is the case of the petitioner-management that on 8-7-1987 the respondent-employee was posted in the Department of Chief Mechanical Engineer on overtime work and was assigned a jeep bearing No. BLB 4505. However, on 8-7-1987 at around 7.30 p.m. it was found that the respondent-employee took another vehicle without permission being Matador bearing No. MAS 8537 belonging to Electrical Establishment Southern Division and parked the same at the Container Yard at the junction of 12, Victoria Dock and ONGC Yard. It is the further case of the petitioner-management that the said action on the part of the respondent-employee was without the orders of the superiors. It is further case of the petitioner-management that at about 7.45 p.m. the Yellow Gate Police foiled an attempt of theft by some miscreants who had opened a container which was lying in the open Yard and were trying to remove bales of raw silk. It is further case of the petitioner-management that on the police arriving at the scene, the respondent-employee drove away the vehicle with two persons jumping into it. It has been subsequently identified by the police that one of the two persons was a known thief.
4. Due to this incident, the respondent-employee was arrested by the police on 9-7-1987 on the charge of being a conspirator in an attempted theft case at the docks on 8-7-1987, The vehicle was also impounded by the Yellow Gate Police Station. Subsequent thereto, the said vehicle was released by the Petitioner by giving an indemnity bond for Rs. one lakh.
5. It seems that on 28-7-1987, the respondent-employee was put under suspension with effect from 9-7-1987. A charge sheet was issued to him on 27-2-1989, inter alia, alleging that the respondent-workman was guilty of serious misconduct attracting Regulation No. 22(2)(b), (c) and (g) of the BPT Rules and Regulations for non-scheduled staff and also guilty of breach of Regulation No. 3(1) of the BPT Employees (Conduct) Regulations, 1976. It was the case of the petitioner-management that this breach of the regulations attracts the penalty of dismissal from service of the respondent-employee. Pursuant there to charge sheet was issued, a reply was filed by the respondent-employee inter alia contending two issues (i) that criminal proceedings are commenced by the Government against him for the similar offence and (ii) he has denied he being on duty or having taken the Matador to the site where the said Matador was found. He has also denied that he was involved in any such incident.
6. To complete the narration of the facts, it is necessary to state that the criminal proceedings continued and they are ended in acquittal of the respondent-employee on the ground of lack of evidence and benefit of doubt by the Additional Chief Metropolitan Magistrate, 5th Court, Bombay, in Criminal Case No. 750/P of 1995. The said order and judgment was delivered by the learned Chief Metropolitan Magistrate on 12-9-1997.
7. In the meantime the charge sheet having been issued and the enquiry having been initiated, the petitioner management completed the said enquiry proceedings and ultimately by an order dated 16-7-1991 the respondent-employee was dismissed from service with effect from 18-7-1991. An appeal was preferred by the respondent-employee which also came to be rejected by an order dated 5-6-1992.
8. Being aggrieved by the same, the respondent-employee moved the machinery for adjudication and a dispute was referred by the appropriate government to the CGIT for adjudication. The same came to be numbered as Reference No. CGIT -2/150 of 1998.
9. By a detailed order passed by the Presiding Officer of the CGIT in Award Part-I, the Tribunal has come to the conclusion that the petitioner-management have been able to establish the charges under Regulation No. 22(2) (b), (c) and (g) of the BPT Rules and Regulations for non-scheduled staff. It also came to the conclusion after going through the evidence that the enquiry officer's report is neither perverse nor bad in law and it is based on sufficient evidence before the enquiry officer. However, the learned Presiding Officer of the CGIT, insofar as Regulation 3(1) is concerned, has given a finding that the charge framed in respect of Regulation 3(1) is not tenable and no charge sheet can be issued against the respondent-employee in respect thereof. Relying upon the judgment in the case of Abdulla A, Latifshah v. The Bombay Port Trust and Ors. reported in 1990 3 CLR 390 the learned Tribunal has come to the conclusion that the charge under Regulation 3(1) cannot be maintained. After giving the aforesaid finding in Part I Award, the learned Presiding Officer of the CGIT has proceeded to decide and determine the matter in Part II so far as inflicting punishment is concerned. While considering the aspect of the punishment, the learned Presiding Officer has considered the fact that as far as the charges under Regulation 22(2)(b), (c) and (g) are concerned, the respondent-employee cannot be given a punishment of dismissal from service particularly in view of the fact that no charges can be maintained under Regulation 3(1) of the BPT Employees (Conduct) Regulations, 1976. The learned Presiding Officer has also considered the judgment of the Criminal Court and after considering the material on record has come to the conclusion that the respondent-employee is entitled to be reinstated in service with continuity. However, he will not be entitled to any monetary reliefs from the date of dismissal till the time of his reinstatement.
10. The said order passed by the Presiding Officer of the CGIT is challenged both by the petitioner-management and the respondent-employee. The petition of the management was filed in, 2002 being Writ Petition No. 671 of 2002 and the respondent-employee has filed his petition approximately two years thereafter being Writ Petition No. 102 of 2004. The challenge in the writ petition preferred by the petitioner-management is to the direction of reinstatement with continuity whereas the challenge in the writ petition filed by the respondent-employee is to the refusal to grant him backwages from dismissal till the date of reinstatement. Both the aforesaid writ petitions were, therefore, heard together in accordance with the directions of the learned Single Judge dated 11-2-2004 wherein it is directed that Writ Petition No. 102 of 2004 to be heard along with Writ Petition No. 671 of 2002.
11. The learned counsel appearing for the petitioner-management has taken me through the awards passed by the learned Presiding Officer of the CGIT. It is his case that the Award passed by the learned Tribunal insofar as Regulation No. 3(1) is concerned, is totally unsustainable. He has pointed out that the judgment which has been relied upon by the learned Presiding Officer being the judgment of the learned Single Judge of this Court in the case of Abdulla A. Latifshah v. The Bombay Port Trust and ors, (supra) has been in fact set aside by the Division Bench in appeal preferred therefrom being Appeal No. 941 of 1990. In view of the fact that the said judgment is set aside, the question of relying upon the said judgment by the learned Presiding Officer of the CGIT is totally erroneous and incorrect in law. The Division Bench judgment in Appeal No. 941 of 1990 in Writ Petition No. 2325 of 1988, inter alia, holds as under :--
'2. Shri Ramswamy, learned counsel appearing on behalf of the appellants, submitted that the decision of the trial Judge suffers from serious infirmity and the principles laid down are entirely violative of well settled principles laid down by catena of decisions of this Court and the Supreme Court. There is considerable merit in the submission of the learned counsel and after close perusal of the judgment, we are unable to share either the reasoning or the conclusion recorded by the trial Judge and, it is, therefore, necessary to set aside the judgment.' On the other hand, the learned counsel appearing on behalf of the respondent-employee has, inter alia, contended that the judgment of the Appeal Bench does not in detail set out the rival contentions and does not consider the issue pertaining to application of Regulation 3(1) on merit and, therefore, the same cannot be considered at all. However, on reading of paragraph 2 of the judgment and also perusing the judgment of the learned Single Judge reported in 1990 3 CLR 590, I find that the learned Single Judge has considered Regulation 3(1) and has inter alia held that the said Regulation 3(1) does not list specific misconduct for the purpose of Penalty and, therefore, no charge sheet can be issued under Regulation 3(1). This view of the Single Judge has not found favour with the Division Bench in appeal. The Division Bench has held that the view of the learned Single Judge is contrary to the series of judgments of various Courts including the Hon'ble Supreme Court of India. The Division Bench while considering the argument of the Bombay Port Trust, who were the appellants in that matter, has held that after close perusal of the judgment they found that the reasoning or the conclusion recorded by the learned Single Judge is not correct in law and consequently they have set aside the said judgment. Once the Division Bench has set aside the judgment of the learned Single Judge, it was not appropriate for learned Presiding Officer of the CGIT to still rely upon the judgment of the learned Single Judge and pass an order setting aside the enquiry under Regulation 3(1) on the basis that the charge sheet could not be issued under Regulation 3(1). I am not impressed by the argument of the respondent-employee that the Division Bench judgment ought not to be read as if the negation of the proposition of law propounded by the learned Single Judge. I find the Division Bench has expressly disapproved the proposition of law which has been propounded by the learned Single Judge in his judgment and has in fact set aside the judgment of the learned Single Judge. In view thereof, I find that the finding of the learned Presiding Officer of the CGIT pertaining to Regulation 3(1) in the impugned Awards is baseless, invalid and totally without jurisdiction. The learned Presiding Officer has relied upon a judgment which is no more a legal and valid judgment as the same is set aside in appeal.
12. This takes me to the next contention of the petitioner-management that once the finding given under Regulation 3(1) is set aside, then, in that event, the enquiry is deemed to be proved both under Regulation 22(2)(b), (c) and (g) and Regulation 3(1) of the Bombay Port Trust Employees (Conduct) Regulations, 1976 and once the said finding is proved and the enquiry is found to be correct and not perverse as held by the learned Presiding Officer of the CGIT; it was not open for the learned Presiding Officer of the CGIT to direct reinstatement of the respondent-employee who is otherwise liable to be dismissed under the said Regulation. As against this, the learned counsel for the respondent-workman has contended that the entire finding of the learned Presiding Officer of the CGIT under Regulation 22(2)(b), (c) and (g) is also erroneous and incorrect. The finding of the learned Presiding Officer of the CGIT that the enquiry conducted by the petitioner-management is valid and neither perverse nor suffers from any breach of the principles of natural justice is incorrect and the same should be interfered with by me in exercise of power under Article 226 of the Constitution of India. For the aforesaid findings, the learned counsel has taken me through the evidence which is on record by and between the parties. I am afraid, in the writ jurisdiction under Article 226 of the Constitution of India, it is not open for me to appreciate or reappreciate the evidence and come to the different findings than what is recorded by the learned authority being Presiding Officer of the CGIT. I find that the learned Presiding Officer of the CGIT has in his judgment considered all the evidence which is on record in paragraph 14 of the said judgment in which the Tribunal has come to the conclusion that the argument of the respondent-employee that the departmental enquiry should have been stayed and ought not to have been proceeded with till and until the disposal of the criminal proceedings against the respondent-employee is invalid. In paragraph 11 of the said judgment the learned Presiding Officer of the CGIT has considered this aspect and relied upon the judgment of the Hon'ble Supreme Court in the case of M. Paul Anthony (Capt.) v. Bharat Gold Mines Ltd. and Anr. reported in 1999 CLR 1032. On the aforesaid basis the argument of the learned counsel for the respondent-employee was rejected by the learned Presiding Officer. I do not find any perversity in the aforesaid findings of the learned Presiding Officer of the CGIT. I find that on the contrary, the issue is now settled by the series of the judgments of the Hon'ble Supreme Court including the one which has been referred to by the learned Presiding Officer of the CGIT in the judgment itself. I also find that in view of the law laid down by the Hon'ble Supreme Court of India that a departmental enquiry being independent and separate proceedings cannot be stayed merely because the criminal proceedings are pending and, therefore, the findings given by the learned Presiding Officer of the CGIT in that behalf are correct and cannot be interfered with under Article 226 of the Constitution of India.
13. Thereafter the learned counsel for the respondent-employee has urged before me that the findings of the enquiry officer as well as the findings of the learned Presiding Officer of the CGIT holding that the said enquiry is fair and proper has to be rejected because ultimately the respondent employee has been acquitted by the Criminal Court in a criminal prosecution by an order and judgment dated 12-9-1997 in Criminal Case No. 750/P of 1995. The said judgment of the Criminal Court is on record. I have perused the said judgment. From a perusal of the said judgment of the learned Additional Metropolitan Magistrate I find that the respondent-employee has been acquitted on the ground that the prosecution has failed to establish the charges against the respondent-employee beyond reasonable doubt. It has been further held by the learned Magistrate that in light of the same the benefit of doubt should be given to the respondent-employee and accordingly the respondent-employee has been acquitted. I, therefore, find from the judgment of the learned Magistrate that the acquittal is on the ground of benefit of doubt and not on merit of the matter. Apart from the fact that mere acquittal in the criminal prosecution would not by ipso facto tantamount to the dropping of the enquiry or acquittal of the employee in the domestic enquiry proceedings though it is true that if the criminal prosecution has failed on merits of the matter and after considering the evidence the Criminal Court comes to the conclusion on merits of the case and acquits the employee, then, to a large extent, the departmental enquiry would not proceed and the same would be dropped. However, in the present case that is not the position. The acquittal is on the ground of benefit of doubt.
14. The learned counsel appearing for the respondent-workman has thereafter drawn my attention to the various judgments which are briefly enumerated as under.
15. The learned counsel has relied upon a Division Bench Judgment of this Court in the case of Dattatraya Vasudeo Kulkarni v. Director of Agriculture, Maharashtra State Central Bldg., Pune and Ors., reported in 1984 M.L.J. 406 : 1984 L.I.C. 1696. By relying upon paragraph 3 of the said judgment, it has been contended that once there is an acquittal, then there is no distinction between acquittal on merits or by giving benefit of doubt. In paragraph 2 of the judgment the Division Bench has considered and held that the concept of honourable acquittal or full exoneration may be inappropriate qua the result of a criminal prosecution and has held that there is nothing called fully exonerated or wholly exonerated.
16. Thereafter the respondent-employee cited the judgment of the learned Single Judge of the Delhi High Court in the case of Mohan Lal v. Union of India and Ors., reported in 1982 L.I.C. 594: While citing paragraph 7 of the judgment it has been contended that once a government employee is exonerated in criminal trial then he is acquitted and fully exonerated. The learned counsel for the respondent-employee has also cited a case in the case of Sulekh Chand and Salek Chand v. Commissioner of Police and Ors. reported in 1995 (1) CLR 225. The judgment of the Apex Court reads as under :--
'The judgment acquitting the appellant of the charge under Section 5(2) became final and it clearly indicates that it was on merits. Therefore, once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental enquiry on the self same allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the D.P.C. has proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date immediate junior was promoted with all consequential benefits. The appeals are allowed. No costs.'
Here the Apex Court has held that only in case where there is acquittal on merits then the person can be exonerated.
17. The learned counsel for the respondent-employee has thereafter cited the case which has been referred to by the learned Presiding Officer of the CGIT in his judgment in the case of M. Paul Anthony (Capt.) v. Bharat Gold Mines Ltd. and Anr. reported in 1999 (1) CLR 1032 in which the Hon'ble Supreme Court of India has held as under :--
'22. The conclusion which are deducible from various decisions of this Court referred to above are :
(i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.
(ii) If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.
(iii) Whether the nature of a charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and material collected against him during investigation or as reflected in the charge-sheet.
(iv) The factors mentioned at (ii) and (iii) above cannot be considered in isolation to stay the Departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.
(v) If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.'
18. On the other hand, the learned counsel for the petitioner-management has contended before me that an acquittal on the ground of benefit of doubt or lack of evidence is not acquittal on merits and thus ipso facto the enquiry proceedings and/or the departmental enquiry cannot be quashed and set aside. It has been further contended before me by the learned counsel for the petitioner management that there is a distinction by virtue of burden of proof and degree of evidence which is necessary in a case of departmental proceedings vis-a-vis in the criminal prosecution and, therefore, they cannot be equated on par. I find that in view of the two judgments of the Hon'ble Supreme Court i.e. Sulekh Chand and Salek Chand v. Commissioner of Police and Ors. (supra) and M. Paul Anthony (Capt.) v. Bharat Gold Mines Ltd., and Anr. (supra) concludes the case as against the respondent-employee. In the present case the acquittal is on the basis of benefit of doubt and lack of evidence. The judgment of the Division Bench of the- Bombay High Court as well as the learned Single Judge of the Delhi High Court are both prior in point of time than the judgment of the Apex Court where there is a judgment laying down the proposition of law, then, I am bound to follow the said judgment of the Apex Court and apply it to the facts of the present case. Apart from that fact, I also find that in the case of State of T. N. v. M. A. Waheed Khan reported in (1988) 8 SCC 723 the Supreme Court has held as under :--
'4. We have heard learned counsel for the parties. We are of the view that the Tribunal fell into patent error. The criminal charge and the charge in the departmental enquiry were entirely different. The appellate Court in the criminal case came to the conclusion that since the two ladies had not supported the prosecution case, the charges against the appellant were not proved. In the judgment, the criminal Court have, however, accepted that one of the ladies, namely Rani, visited the police station at midnight allegedly to find out as to what had happened to the other lady (Rani's sister-in-law), who was already in the police station. When the two ladies were admittedly at the police station at night, no fault can be found with the charges, as framed in the departmental enquiry. The Tribunal further fell into patent error in holding that it was a case of 'no evidence'. It is a settled proposition of law that strict rules of evidence are not applicable to departmental enquiries. Before the Enquiry Officer, the statement of both the ladies were recorded. He appreciated the evidence in the light of their earlier statements made in the preliminary enquiry. In this view of the matter, it is not correct to say that there was no evidence before the Enquiry Officer.'
19. In a recent Judgment of the Calcutta High Court in the case of Durgapur Chemicals Ltd. v. Ninth Industrial Tribunal, West Bengal and Ors., reported in 2001 /// CLR 847, the Hon'ble Calcutta High Court has laid down as a settled legal principle in paragraph 4 as under :--
'4. It is now a settled legal principle that the domestic enquiry under the standing order and/or disciplinary proceeding under the service rule qua criminal proceeding on the identical fact situation, there is no embargo of simultaneous proceeding of both the two matters. It is also settled legal position now that the domestic enquiry and/or departmental proceeding relates to adjudication of the conduct of the workmen and/or employee concerned upon being charged for misconduct on issue of factual matrix as mentioned in the article of charge, whereas in a criminal proceeding on the identical fact situation, determination and decision of the Court is to find the guilt of the person concerned in terms of the criminal offence either relating to Indian Penal Code or any other penal statute. Furthermore, it is a settled legal principle that proof of fact and the degree of such proof varies in respect of the two proceedings. In a criminal proceeding, charge is required to be proved without any doubt and strictly following the Evidence Act, whereas in a domestic enquiry and/or departmental proceeding preponderance of probability would suffice for determining the conduct of the delinquent. Even if in identical fact situation, it is now settled that even after acquittal of an accused from a criminal proceeding, domestic enquiry can be completed and punishment can be imposed. Hence, pendency of a criminal proceeding or adjudication of a criminal proceeding on the identical fact, ipso facto will not destroy the findings of the domestic enquiry. Judgments of all these legal propositions are based on : Union of India v. Sardar Bahadur, reported in 1972 L/C 627, Nelson Motis v. Union of India and Anr., reported in 1992 3 CLR 825, State of Rajasthan v. B.K. Meena, reported in : (1997)ILLJ746SC and Depot Manager, Andhra State Road Transport Corporation v. Mohd. Yusuf Miya, reported in : (1997)IILLJ902SC .'
This view was expressed by the Hon'ble Calcutta High Court by taking into account a series of judgments of the Hon'ble Supreme Court as set out in the said paragraph itself. In view of the fact that the law being settled by the series of the judgments of the Supreme Court of India, I am not inclined to accept the argument of the learned counsel for the respondent-employee that the criminal prosecution being pending, the enquiry ought not to have been proceeded with or alternatively that the enquiry be quashed and set aside on the basis of acquittal on the ground of benefit of doubt or on the ground of lack of evidence and prosecution having failed to establish its case.
20. The learned counsel for the respondent-employee also referred to the Division Bench judgment of this Court in the case of Sumangal Veerbaladur Rana v. State of Maharashtra and Ors., reported in 1999 (4) L.L.N. 917 in which it has been held that though it is true that the result of criminal proceeding may not be binding on domestic enquiries, however honourable acquittal was very relevant to be considered by the authorities in the departmental enquiries. I do not find any relevance of the said judgment in the present case, firstly because it is nobody's case that the judgment has not been considered and secondly because the judgment of the criminal Court is not of an honourable acquittal on merits. It is only on the ground of lack of evidence and on the ground of benefit of doubt. The Division Bench judgment only requires that some consideration should be given to the criminal case and not that the acquittal in the criminal case would tantamount to making acquittal in respect of the domestic enquiry. In the facts of the present case, I do not find that the judgment of the Division Bench is applicable.
21. This leads me to the next contention of the learned counsel for the respondent-employee. It is the case of the respondent-employee that under the regulations prescribed, the respondent-employee was entitled to 50% of the subsistence allowance from the date of his suspension and the regulation further prescribes that on expiry of a period of six months, the said subsistence allowance should be suitably revised. The said subsistence allowance in the present case was not revised and additional amount was not paid on expiry of period of six months, therefore enquiry is in breach of the principles of natural justice. In support of this argument, the learned counsel has relied upon the judgment of the learned Single Judge of this Court in the case of Bharat Petroleum Corporation Ltd. v. Ramnath Jagdish Tiwari and Ors., reported in 1994 (2) CLR 1117 in which it was inter alia held that the subsistence allowance being not paid at the rate of 75% in spite of demand, the enquiry is vitiated. I find on perusal of the said judgment that in that case under Industrial Employment (Standing Orders) Act, 1946 it is inter alia provided to make payment of the subsistence allowance at the rate of 75% and, there was a breach of the said standing order 10-A(1) and the subsistence allowance was not paid at the rate of 75% and the same was not paid even after the notice being issued and the demand being made. In the present case the provision of subsistence allowance is made under the Regulation. The said Regulation insofar as revision is concerned, reads as under :--
'The amount of subsistence allowance may be increased by a suitable amount not exceeding 50 per cent of the subsistence allowance admission during the period of the first six months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing not directly attributable to the employee.'
On a plain reading of the said regulation it provides for the payment of subsistence allowance at 50% and it further provides that after a period of six months the authority may increase it by a suitable amount not exceeding 50%. This vests a discretion in the petitioner-management and not a binding regulation breach of which would entail a serious consequence. It is nobody's case in the present case that at the rate of 50% the subsistence allowance was not paid. It is the case of the respondent-employee that the petitioner-management ought to have exercised discretion in his favour by enhancing the said subsistence allowance. The learned counsel for the respondent-employee has also drawn my attention to the judgment of the Hon'ble Supreme Court of India in the case of M. Paul Anthony (Capt.) v. Bharat Gold Mines Ltd., and Anr. (supra) for the proposition that non-payment of subsistence allowance during the pendency of the enquiry would vitiate the enquiry. However, while considering the said aspect, the Hon'ble Supreme Court of India has found in that case that no amount whatsoever was paid towards subsistence allowance and thus the Hon'ble Supreme Court of India came to the conclusion that in absence of payment of subsistence allowance the employee was handicapped in defending the said enquiry and, therefore, the said enquiry was vitiated. The said paragraph 33 reads as under :--
'33. Since the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, Stand vitiated.'
In view of the fact that in the present case is in accordance with the regulations, the subsistence allowance is paid at the rate of 50%, it is only the discretionary aspect of the matter for revising the additional subsistence allowance being not exercised by the petitioner-management, which according to me, does not tantamount to non-payment of subsistence allowance so as to vitiate the whole enquiry.
22. The learned counsel for the respondent-employee lastly contended that this Court should consider the evidence before the enquiry officer and come to its own conclusion whether the charge is proved or not. I am afraid that I am not entitled to undertake the said exercise particularly when sitting in writ jurisdiction under Article 226 of the Constitution of India. However, I find that there has been evidence led by the petitioner-management including examination of a large number of witnesses to establish the charge against the respondent-employee. The charge is of a grave nature and thus, the punishment awarded in accordance with the rules and regulations cannot be altered or interfered with. In the aforesaid circumstances, I find that the judgment of the learned Presiding Officer of the CGIT in the present case insofar as it reinstates the respondent-employee in service even after giving the finding that the charge under Regulation 22(2)(b), (c) and (g) has been established is erroneous and incorrect. I am therefore required to interfere with the findings of the learned Presiding Officer of the CGIT insofar as that aspect is concerned. However, so far as the aspect of the non-payment of backwages is concerned, once having interfered with the order of reinstatement passed by the learned Presiding Officer in the present case that issue does not arise. In any event, I do not find that the order of non-payment of the backwages is in any way erroneous or having any infirmity therein having given a finding that the enquiry conducted by the petitioner-management is not perverse or in breach of principles of natural justice.
23. In the aforesaid circumstances, I allow writ petition No. 671 of 2002 in terms of prayer (a). Insofar as the writ petition of the respondent-employee is concerned, being writ petition No. 102 of 2004, I find no merit in the said writ petition and accordingly I dismiss the said writ petition. However, in the facts of the present case, there shall be no order as to costs.
24. At the request of the learned counsel for the respondent-employee, the operation and implementation of this order is stayed for a period of eight weeks from today.
Parties be provided ordinary copy of this order duly authenticated by the Private Secretary of this Court.