(Delivered by Hon'ble Ritu Raj Awasthi, J)

This special appeal arises out of the final order dated 30.01.2012 passed in Writ Petition No. 529 (SS) of 2012 (Rajendra Prasad Upadhyaya Versus State of U.P. and others), wherein on preliminary objection raised by the learned Standing Counsel, the writ petition was dismissed on the ground of availability of alternative remedy to the petitioner at the admission stage.

2. Since the grounds raised in the appeal relates to the maintainability of the writ petition in the background of existence of alternative remedy, which are purely legal in nature, thus, we have proceeded to decide the special appeal at the admission stage with the consent of parties' counsel.

3. Heard Mr. Anil Tiwari, learned Senior Advocate, assisted by Mr. Rajan Roy, learned counsel for appellant and Smt. Sangeeta Chandra, learned Additional Chief Standing Counsel for State and perused the record.

4. Sworn of unnecessary facts, suffice is to mention that the writ petition before the learned Single Judge was filed against the punishment order dated 31.12.2011 challenging the punishment of reduction in rank to the post of Chowkidar and withholding of increment for the year 2006-07 alongwith punishment of reprimand.

5. As per appellant-petitioner, he was initially appointed as Mate in the Irrigation Department in the year 1972 and thereafter promoted on adhoc basis as junior clerk in the year 1977 and confirmed on the said post in 1978. As a consequence of re-structuring of the clerk cadre, the appellant was designated and given the pay scale of senior clerk in the year 1996. On a complaint made by one Sri Ajay Singh, the then President, U.P. State Employees Union, an inquiry was held against the appellant in the year 2009. After the receipt of charge-sheet, the appellant had demanded certain documents which could not be provided to him and as such no reply to the charge-sheet was submitted, the inquiry officer had submitted an ex-parte inquiry report on the basis of which a show cause notice was issued. The appellant in his reply denied the alleged charges levelled against him and the findings of the inquiry officer and pleaded that he was not provided adequate opportunity of defence in the inquiry proceedings.

6. Moreover, in the inquiry proceedings out of five charges, three were not found proved by the inquiry officer, whereas the finding with regard to remaining two charges, apparently, were not sustainable as they were in gross violation of Rule 9(2) and 9(4) of the U.P. Government Servants (Discipline & Appeal) Rules, 1999 (hereinafter referred to as the 'Rules of 1999') as well as the law laid down by Hon'ble the Apex Court in the cases of (i) State of U.P. vs. T.P. Lal Srivastava (1996) 10 SCC 702, (ii) State of U.P. vs. Saroj Kumar Sinha (2010) 2 SCC 772, (iii) Roop Singh Negi vs. Punjab National Bank (2009) 2 SCC 570, wherein it has been held that in case a delinquent employee had avoided to submit reply, he had forfeited his right to submit reply, nonetheless the disciplinary authority is not absolved of the duty to hold an ex-parte enquiry to find out whether or not the charges have been proved.

7. The arguments at considerable length have been raised by both the parties but the controversy revolves around the sole question as to whether the appellant-petitioner be relegated to avail the departmental remedy of appeal and in the presence of such remedy, whether the writ petition is maintainable or not.

8. The existence of alternative remedy is not an absolute bar, is a legal proposition, which does not require any detailed reasons. It is also not open to debate that in case an alternative efficacious remedy is available, the High Court normally would not interfere straight-way under Article 226 of the Constitution of India. It is also established principle of law that self restraint is exercised by the High Court in dealing with such matters, which otherwise can be looked into by the Special Forum or Statutory Auth

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