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Asharful Ain Siddiqui v. State Of U.P. & Others - SPECIAL APPEAL No. 640 of 2007 [2007] RD-AH 9488 (18 May 2007)


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Court No.32

Special Appeal No.640 of 2007

Asharful Ain Siddiqui v. State of U.P. & others.

Hon'ble S. Rafat Alam, J.

Hon'ble Rakesh Sharma, J.

This intra court appeal, under the rules of the Court, arises from the judgment of the Hon'ble Single Judge dated 17.4.2007 dismissing the appellant's writ petition against the order of punishment on the ground of alternative remedy.

We have heard learned counsel for the appellant and also perused the order of the Hon'ble Single Judge.

Learned counsel for the appellant vehemently argued that the existence of alternative remedy is not an absolute bar to the relief claimed under Article 226 of the Constitution of India.  It is further argued that the Hon'ble Single Judge while dismissing the writ petition on the ground of availability of alternative remedy also expressed opinion on merit, which is bound to prejudice the case of the appellant before the appellate authority.  

There is no quarrel to the proposition that existence of an alternative remedy is not a bar to claim relief under Article 226 of the Constitution.  However, the High Court in exercise of its discretion may decline to interfere with the order impugned in the writ petition till the statutory remedies are exhausted.  Rule of exhaustion of statutory remedy is rule of policy, convenience and discretion rather than a rule of law, but at the same time this rule does not bar the jurisdiction of this Court under Article 226 of the Constitution.  However, where the right or liability is created by the statute, which itself prescribes the remedy or procedure for enforcing such right or liability, in that event the person aggrieved must first avail that remedy provided in the statute before seeking discretionary remedy under Article 226 of the Constitution.

In the case in hand, the appellant is working in the police department and a proceeding was drawn against him wherein he has been held guilty and punishment of fine of Rs.500/- has been imposed under the provisions contained in the U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the Rules).  Rule 20 of the Rules itself provides an appeal against such an order. Admittedly, the appellant has the remedy of appeal under the rule itself and, therefore, there can be no exception to the order of Hon'ble Single Judge declining to entertain the writ petition because of availability of alternative remedy.  The contention that the Hon'ble Single Judge has expressed opinion on merit has also no force.  It appears that it was contended before the Hon'ble Single Judge that the impugned order of punishment is in violation of the principles of natural justice and thus, the alternative remedy is no bar.  Therefore, the Hon'ble Single Judge has examined that contention and found that show cause notice was issued and the appellant also gave reply to the notice, hence repelled the contention.  The Hon'ble Single Judge addressed on the submissions, which were made to by-pass the statutory remedy and, therefore, it would be difficult to hold that his Lordship has expressed any final opinion on merit.  However, we may clarify that if the appeal is preferred, the departmental appellate authority shall dispose of the same on merit expeditiously and without being influenced or prejudiced by the observation made in the judgment of this Court dated 17.4.2007 in Civil Misc. Writ Petition No.19093 of 2007.

With the above observation the special appeal is dismissed.




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