S. K. SEN, C. J. , S. RAFAT ALAM, J.

( 1 ) THIS Special Appeal has been preferred against the order of learned single Judge dated 7. 5. 1999 in Writ Petition No. 17039/1984 whereby the learned single Judged allowed the writ petition and set aside the impugned order dated 17. 11. 1984.

( 2 ) WE have heard learned standing counsel appearing for the appellant and learned counsel for the respondent. It is contended on behalf of appellant that in view of the statutory remedy being available under U. P. Public Service Tribunal Act, the writ petition was not maintainable and on this score alone, the writ petition was liable to be dismissed but this aspect has not been considered by learned single Judge and. therefore, this appeal deserves to be allowed. Reliance has also been placed on reported judgment of the Honble Supreme Court in case of L. Chandra kumar v. Union of India, 1997 (3) SCC 261.

( 3 ) IT is true that normally where a statute itself prescribes a remedy, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the constitution of India, and the High Court while exercising its writ jurisdiction under Article 226 of the Constitution may decline to grant relief in the writ petition until such statutory remedy is exhausted. However, this rule of exhaustion of statutory remedy is a rule of policy, convenience and discretion and not a rule of law nor it bars the jurisdiction of the High Court under Article 226 in granting relief in appropriate case and exceptional circumstances.

( 4 ) THE Honble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, mumbai and others, JT 1998 (7) SC 243, while considering this rule of exhaustion of statutory remedies held as follows :

"under Article 226 of the Constitution, the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if a effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-taw on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. "

( 5 ) THEREFORE, it is a well settled legal position that inspite of availability of alternative remedy if the order impugned suffers from the lack of jurisdiction, or is in violation of principles of natural justice, the High Court can entertain the writ petition and pass appropriate orders. In the case in hand the learned single Judge has found that the alleged second departmental proceeding pursuant to the direction of the learned Tribunal was not initiated to terms of the direction after giving appropriate opportunity to the writ petitioner. U has been found by the learned single judge that in fact no departmental Inquiry was initiated afresh and petitioner was not afforded opportunity to defend as directed by Tribunal vide its judgment and order dated 28. 10. 1980 a copy whereof has been annexed as Annexure-1 to the writ petition.

( 6 ) THEREFORE, when the Impugned order was itself found to be in violation of principles of natural justice the learned single Judge has rightly entertained the writ petition. No other point has been urged by the learned counsel for the appellant. Besides that during course of arguments of this appeal, it has been stated at the bar that the writ petitioner has already retired from service.

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