ORDER M. Katju and Rakesh Tiwari, JJ.
1. This writ petition has been filed against the impugned order dated 8/9.2.2000, Annexure-7 to the petition and for a mandamus directing respondent Nos. 1 and 2 to make payment of salary, allowances etc.
2. The petitioner was appointed as Assistant Accounts Officer, Rasra, district Ballia in the service of the U. P. State Yarn Company Ltd. vide order dated 25.7.1987, Annexure-1 to the writ petition. The petitioner was subsequently given the work as Accounts Officer vide order dated 13.9.1991, Annexure-2 to the writ petition in addition to his duty till the joining of the new incumbent. Subsequently, he was transferred to the Head Office by the order dated 25.9.1993 vide Annexure-3 to the writ petition. He was then assigned duty as Stores Purchase Officer vide order dated 11.6.1993 and subsequently, transferred to the Banda Unit vide order dated 29.7.1997, Annexure-5 to the writ petition.
3. The petitioner was suspended by order dated 19.9.1998 and an enquiry was initiated against him vide order dated 19.9.1998, Annexure-6 to the writ petition. Thereafter the impugned order dated 8/9.2.2000 was passed by which the petitioner was reinstated but given punishment of withholding two annual increments from 1.10.1998 without cumulative effect. It was also directed that in addition to subsistence allowance, no other benefit will be paid to the petitioner during the suspension period. Again that order, this writ petition has been filed.
4. A counter-affidavit has been filed by the respondent Nos. 1 and 2. In para 4 of the counter-affidavit, it is stated that the company was declared sick by the B.I.F.R. in the year 1992 and the proceedings are still pending before the Board. At present, three out of four manufacturing units of the company are lying permanently closed. In para 5 of the counter-affidavit, it is stated that the petitioner was directed to work as Stores Purchase Officer but he was never promoted to that post nor paid the pay scale of that post. In para 7, it is stated that the enquiry officer held enquiry and found all charges levelled against the petitioner to be established. However, he recommended withholding of two increments without cumulative effect and this report was accepted by the disciplinary authority. In para 8 of the counter-affidavit, it is stated that full opportunity of hearing was given to the petitioner. In para 9, it is stated that the manufacturing activities in Banda Unit of the company were stopped some time in December, 1998, due to severe financial crisis. On account of non-availability of funds, none of the employees of the unit were paid any salary. Still the petitioner was paid subsistence allowance upto February, 1999. It is further stated that the respondent company is making efforts to arrange for the funds and in this connection, the company has also approached the State Government to provide adequate funds to make payment to the employees. A copy of the letter dated 1.2.2002, is Annexure-C.A. 1 to the counter-affidavit. In para 12 of the counter-affidavit, it is stated that the petitioner was not entitled for any show cause or copy of any enquiry report as there exist no provision for the same in the Service Bye-laws. In para 16, it is stated that services of the petitioner were terminated on account of closure of the unit in accordance with the provisions of the Service Bye-laws. It is further stated that the service of the petitioner was terminated along with other officers of the unit as the said unit was permanently closed down w.e.f. 10.2.2000. The petitioner cannot be permitted to challenge the closure after a lapse of more than 2 years.
5. The finding of guilt against the petitioner is a finding of fact and we cannot interfere with the same in writ jurisdiction. The petitioner was given opportunity of hearing in the enquiry and hence, he cannot make any complaint in this regard. In our opinion, since a minor punishment was imposed on the petitioner, it was not necessary to hold an enquiry required for inflicting of a major punishment. A perusal of Annexure-6 shows that there were serious allegations of irregularities committed by the petitioner as referred to in para 6 of the counter-affidavit. These irregularities were in relation to the purchase of stores item and the petitioner has been found guilty in respect of the same. Hence, we cannot interfere with the action taken by the respondent authorities. As regard non-payment of subsistence allowance, it had been stated that the respondent is making efforts to arrange for funds and in that connection, the company also approached the State Government to provide adequate fund to make payment. Moreover, in our opinion, the petitioner has not been prejudiced because of non-payment of subsistence allowance. In our opinion, an enquiry will be vitiated for nonpayment of subsistence allowance if some prejudice is caused to the employee in the enquiry because of such non-payment. In Shiv Dularey Gupta v. Director, 2001 (4) AWC 3188, this Court held unless prejudice is caused to the petitioner, non-payment of subsistence allowance does not vitiate the enquiry. In our opinion, the decisions of the Supreme Court in Jagdamba Prasad Shukla v. State of U. P., 2000 (4) AWC 2982 (SC) ; 2000 (7) SCC 90 and Capt. M. Paul Anthony v. Bharat Gold Mines, 1999 (2) AWC 1579 (SC) : AIR 1999 SC 1416, do not lay down an absolute proposition that whenever subsistence allowance is not paid, the enquiry gets automatically vitiated. It will be vitiated only if prejudice in the enquiry is caused to the employee due to such non-payment.
6. In view of the above, this petition is dismissed. Interim order, if any, is vacated.