JUDGMENT .

Irshad Ali, J.

1. Heard Sri Asit Kumar Chaturvedi, learned Senior Advocate assisted by Sri Ashwani Kumar Singh, learned counsel for the petitioner and Sri R.C. Tiwari, learned counsel for respondent Nos.1 to 3.

2. The present writ petition has been filed challenging the order of termination dated 26.9.1981, passed by the respondent No.3 (Annexure-2 to the writ petition) with the further prayer to issue a writ of mandamus commanding the respondents to reinstate the petitioner in service with full back wages and all consequential benefits accrued to the post of the petitioner and to quash the order dated 23.12.1992 (Annexure-7 to the writ petition).

3. Fact of the case is that the petitioner was granted appointment on the post of Semi-Skilled Mechanist in the respondent-department on 4.3.1975. While working on the said post, a First Information Report under Section 307/34 IPC and Section 25 of Arms Act was lodged against him and a Case Crime No.560/1981 was registered at Police Station Krishna Nagar, District Lucknow. The petitioner was arrested and was sent to jail, therefore, he could not discharge his duties in the respondent-department.

4. Vide order dated 26.9.1981, the service of the petitioner was terminated on the ground of unauthorized absence from duties. The petitioner was granted bail vide order dated 30.9.1981 and thereafter, he moved an application on 26.10.1981 to permit him to join the department. The petitioner was not permitted to join then he again moved an application on 8.4.1991 and due to non consideration of the claim setup by the petitioner, the present writ petition has been filed before this Court, wherein on 2.9.1992, direction was issued to decide the application of the petitioner made for joining in the respondent-department.

5. Vide letter dated 23.12.1992, the petitioner was informed that the application filed by him on 26.10.1981 has already been decided through letter dated 30.11.1981 and a copy of the said letter was enclosed therein. The order dated 23.12.1992 was challenged by filing an amendment application in the present writ petition and the amendment application was allowed and necessary incorporation has been brought on record of the present case.

6. Submission of learned counsel for the petitioner is that without holding disciplinary proceeding, due to absence from duties, the service of the employee cannot be terminated automatically. In support of submission, he placed reliance upon a judgment in the case of Scooters India Ltd. Vs. M. Mohammad Yaqub & Another [(2001) 1 Supreme Court Cases 61].

7. His next submission is that the claim setup by the respondent that the petitioner has not informed in regard to the unauthorized absence is wholly incorrect. He invited attention at page-29 of the amended petition, which is certificate of the Superintendent of Jail that information in regard to the confinement in jail of the petitioner was furnished to the respondent-department, therefore, there was no unauthorized absence of the petitioner from service.

8. In the light of the aforesaid submission, it has been submitted that the impugned order of termination is per se illegal and the petitioner is entitled for reinstatement in service with all consequential benefits.

9. On the other hand, Sri R.C. Tiwari, learned counsel for the respondents raised preliminary objection in regard to the maintainability of the writ petition on the ground of availability of alternative remedy to approach the Industrial Tribunal in regard to the grievances raised in the present writ petition. He next submitted that there is inordinate delay in approaching this Court in filing the present writ petition. The petitioner was terminated on 26.9.1981 and has filed the present writ petition in the year 1992, therefore, there is almost 11 years delay and in case the petitioner was not vigilant to his rights, he is not entitled to get relief under Article 226 of the Constitution of India.

10. In regard to the submission ad