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2012 DIGILAW 76 (PAT)

Surendra Prasad Yadav v. State Of Bihar

2012-01-13

NAVIN SINHA

body2012
ORDER : 1. Heard learned Counsel for the petitioner and the State. 2. The petitioner is aggrieved by the ORDER :dated 17.1.2011. It directs recovery of a sum of Rs. 59,592.26 on account of the Circle Office, Saurbazar,, and a sum of Rs. 18,600 outstanding with interest @ 12 %. 3. It is submitted that in a departmental proceeding the Enquiry Officer on 31.1.1997 opined for a fresh measurement before accounting and fixation of liability. The petitioner came to this Court in CWJC No. 1015 of 2001. Directions were given to take a final decision. ORDER :s of punishment were passed on 7.6.2011 including for recovery of the amount in question. The petitioner preferred Appeal No. 16 of 2005 before the Commissioner. On 30.10.2006 the Commissioner set aside the ORDER :of punishment dated 7.6.2001 and remanded the matter for fresh disposal in accordance with law. The District Magistrate has passed the fresh impugned ORDER :which is not reasoned and discussed but simply reiterates the earlier ORDER :of punishment dated 7.6.2001 holding that it requires no interference. 4. It is submitted that once the ORDER :dated 7.6.2001 was set aside and the matter remanded to the Commissioner, the ORDER :no more survived. It was non existent for all purpose. The District Magistrate could not have looked into that non existent ORDER :. He was required to pass fresh reasoned and speaking ORDER :. Reliance is placed on AIR 1984 SC 1359 (Narinder Singh v. Surjit Singh) observing at paragraph 2 as follows:- “2. These observations besides being in poor taste are lacking, in propriety as also in respect due to the highest Court of the land by the State High Court. It may be that the learned Judge felt that the decision in respect of paras 29 and 36 was not to his liking but when its own decision was set aside by this Court it became the law of the land and it was the duty of everybody including the High Court to obey the ORDER :and not try to avoid it. Nor was it open to the High Court to find fault with the same. More than this we would not like to say but we cannot refrain from observing that the High Court will realise its limitations in future.” 5. Nor was it open to the High Court to find fault with the same. More than this we would not like to say but we cannot refrain from observing that the High Court will realise its limitations in future.” 5. Learned Counsel for the State submits that it appears from para 20 of the writ application that the petitioner has moved before the Divisional Commissioner against the fresh impugned ORDER :. Since he has availed alternate remedy the writ Court may not interfere at this stage. 6. Availability of an alternate remedy and the reluctance to interfere in the writ jurisdiction is more a matter of discretion to be exercised on the facts of each case and not any rule of law. Once the petitioner has been able to demonstrate that the impugned ORDER :is palpably contrary to the well settled law the Court is not persuaded to relegate the petitioner to the alternate remedy. 7. The impugned ORDER :dated 17.1.2011 is set aside but without prejudice to the rights of the respondents. 8. The writ application is allowed.