WP(C) 282/2011 BEFORE THE HON’BLE MR.JUSTICE U.B. SAHA The instant writ petition is filed by the petitioners, three in number, challenging the order dated 25.11.2010 (Annexure-20 to the writ petition) passed by the disciplinary authority, i.e. the Director of Elementary Education, Assam , respondent No.2, whereby and whereunder on completion of the departmental proc eeding against the petitioners, the disciplinary authority penalized them with a n order, inter alia, that the misappropriated amount is to be recovered from the pay of the incumbents, i.e. the petitioners for the pecuniary loss caused to th e Govt. exchequer. Heard Mr. AS Choudhury, learned senior counsel assisted by Miss S.Kanung oe, learned counsel for the petitioners and Mr. MR Pathak, learned Standing Coun sel, Education as well as Mr. D.Saikia, learned counsel appearing for the respon dent No.6, the Treasury Officer, Karimganj. It appears from the record that the petitioners earlier approached this court challenging their suspension order in W.P.(C) Nos. 8189/05, 8190/05 and 81 91/05 and this court vide order 14.12.2005 set aside their suspension orders an d directed the respondent authority to reinstate them in service. In compliance of the order of this court, the respondents ultimately reinstated them, but proc eeded with the disciplinary proceeding as the charge framed against them were se rious in nature, particularly misappropriation of pension amount and DCRG of the retired employees though the case of the petitioners is that there was no disci plinary proceeding only a notice was issued to them to appear before the discipl inary authority and accordingly, they appeared, but there was no inquiry held ag ainst them as required under Rule 9 of the Assam Services Discipline and Appeal Rules, 1964 (for short ’the Rules’). Whatever may be fact, it is admitted by the learned counsel of both side s that the petitioners did not avail of the alternative remedy of preferring app eal before the statutory appellate authority under Rule 15 of the Rules before a pproaching this court by filing the instant writ petition with a prayer to quash the impugned order (Annexure-20 to the writ petition). This court is of the con sidered opinion that there may be a good case for the petitioners for interferen ce by this court in the writ petition, but it would not be proper for this court to exercise the jurisdiction of judicial review vested in it when the legislatu re provides an alternative forum in the statute though it is the settled positio n that alternative remedy is not a bar to prefer a petition before the writ cour t without availing of the alternative remedy. Mere having power does not mean th at has to be exercised always. The writ court should restrain itself from exerci sing its power when there is a statutory alternative remedy prescribed. At the s ame time, the court has also to see that a justice seeker should not be penalize d for choosing the wrong forum. Accordingly, this writ petition is disposed of with a direction to the p etitioners to approach the statutory appellate authority [The Commissioner, Educ ation (Elementary) Department, Govt. of Assam] within fifteen days from today. T he appellate authority is directed to dispose of the appeal of the petitioners, if any filed, preferably within a period of three months from the date of filing the same after giving opportunity to the petitioners of personal hearing. The a ppellate authority is further directed to fix a definite date of hearing and int imate the same to the petitioners so that they can personally appear before him. Till the petitioners file the aforesaid appeal, the impugned order dated 25.11.2010 (Annexure-20 to the writ petition) shall remain stayed. Whether duri ng the pendency of the appeal, if any filed by the petitioners, the impugned ord er would remain stayed or not, it is left open for the decision of the appellate authority. With the above observations and directions, this writ petition is dispos ed of.