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Damodar Prasad Mishra v. State Of U.P. And Others - WRIT - A No. 22509 of 2006  RD-AH 17517 (11 October 2006)
Civil Misc. Recall Application No.104099 of 2006
Civil Misc. Writ Petition No.22509 of 2006
Damodar Prasad Mishra vs. State of U.P. & others.
Hon'ble S. Rafat Alam, J.
Hon'ble Sudhir Agarwal, J.
This is an application seeking review/recall of this Court's order dated 25.4.2006 dismissing the writ petition on the ground of availability of alternative remedy.
Sri S.F.A. Naqvi, learned counsel for the petitioner-applicant vehemently contended that since the disposal of his claim petition may take longer time before the U.P. Public Service Tribunal and, therefore, the petitioner may not be relegated to the alternative remedy. He further submits that the petitioner's earlier two petitions bearing Claim Petition Nos. 232 of 2002 and 477 of 2004 are still pending before the learned Tribunal. We are afraid this cannot be a ground to recall/review our order. Once a statutory remedy is available the person aggrieved has to first avail the same.
A Full Bench of this Court in Chandrama Singh v. Managing Director, U.P. Sugar Corporation, 1991 (2) UPLBEC 898 considered the question of exhaustion of alternative remedy and in paras 9 and 13 of the judgment held as under:
"9. Having regard to the above noticed decisions of the Hon'ble Supreme Court of India, it is ruled that where a complete machinery/remedy for obtaining relief is provided in statute and such machinery and remedy fully covers the grievance of the petitioner then, unless extraordinary or exceptional circumstances exist or the machinery remedy does not cover the grievance of the petitioner or the machinery or remedy is demonstrated and proved by the petitioner to be inadequate or inefficacious, the petitioner has to be relegated to the alternative remedy and the Court should not entertain a writ petition under Article 226 of the Constitution of India for redressal of the grievance by the petitioner......"
13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India, to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alternative remedy than to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India." The petitioner must furnish material facts and particulars to sustain such a plea."
Recently, after considering the various earlier judgments the Hon'ble Apex Court in the case of U.P. State Spinning Co. Ltd. v. R.S. Pandey & another, (2005) 8 SCC 264 has also taken similar view and observed as under: -
"In a catena of decisions it has been held that writ petition under Article of the Constitution should not be entertained when the statutory remedy is available under the Act, unless exceptional circumstances are made out."
In view of the aforesaid binding decision, we do not find any reason to recall/review our order dated 25.4.2006 whereby the writ petition was dismissed relegating the petitioner to avail statutory alternative remedy under the law. The application, therefore, being misconceived, is rejected.
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