16.wp.10493.08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10493 OF 2009 Shri Yashwantrao Baburao Mali. ..Petitioner. Versus Shri Dattatraya Pandurang Metake (Deshmukh) and 3 others. ..Respondents. .... Mr.Nitin Jamdar, Advocate a/w. Vijay Killedar, Advocate for the Petitioner. Mr.N.V. Walawalkar, Senior Advocate with Mr.G.H. Keluskar, Advocate for respondent No.2. Mr.S.R. Nargolkar, A.G.P., for respondent Nos.3 & 4. .... CORAM : D.K. DESHMUKH, AND A.R. JOSHI, JJ. DATED : 7TH JANUARY, 2010. P.C.:­ 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. 2. By this Petition, the petitioner makes a grievance against the order dated 3.12.2009 by which the petitioner has been reverted from the post of Additional Commissioner of Municipal Corporation to the post of Estate Manager. The petitioner has been in service of the Corporation for the last about 30 years. 16.wp.10493.08 2 He entered the service of the Corporation as a Clerk and has been promoted to various posts. Last time, he was promoted to the post of Additional Commissioner by order dated 20.5.2006. On 3.12.2009 the Commissioner passed an order reverting him from the post of Additional Commissioner to the post of Estate Manager which is a class­III post. Admittedly, no show­cause notice was given to the petitioner before reverting him to a class­ III post. Admittedly no final opinion has been recorded by the Commissioner that the petitioner does not have the qualification to hold the post of Additional Commissioner. Only prima facie opinion has been recorded by the Commissioner. 3. The objection that is raised on behalf of the Corporation is that under the Corporation Act there is alternate remedy provided to the petitioner for challenging this order and, therefore, the petitioner should avail of that remedy and, therefore, we should not entertain this Petition, in view of availability of this alternate remedy. 4. From the record it is clear that the petitioner was permanent incumbent to the post of Additional Commissioner. He was holding that post for the last three years. By the order issued he has been reverted to a class­III post on the ground that according 16.wp.10493.08 3 to the Commissioner he does not possess educational qualification necessary for the post of Additional Commissioner. Perusal of the impugned order shows that it is not even a final opinion recorded by the Commissioner, but, it is only a prima facie opinion recorded. Admittedly the order dated 3.12.2009 visits the petitioner with adverse consequences, but, that order has been admittedly made without giving an opportunity of hearing and of showing cause. Even assuming that the Commissioner was of the opinion that the petitioner does not have the required qualification, the Commissioner could have issued a show cause notice and granted the petitioner an opportunity of being heard and then passed whatever order the law permits him to pass. In our opinion the conduct of the Commissioner of making the order dated 3.12.2009 without complying with the principles of natural justice shows arbitrariness in the conduct of affairs by the Commissioner and, therefore, it violates the guarantee of Article 14. Assuming that there is remedy of appeal provided against the order, in our opinion, as a result of catena of judgments of the Supreme Court one recognized exception to the rule of availing of alternate remedy is when the order challenged before the High 16.wp.10493.08 4 Court violates fundamental rights or the principles of natural justice. In the present case, order dated 3.12.2009 violates both ­ the fundamental rights guaranteed under Article 14 and the principles of natural justice. Therefore, in our opinion it will not be appropriate to direct the petitioner to avail alternate remedy. In the result, the Petition succeeds and is allowed. Order dated 3.12.2009 is set aside. It is clarified that, if so advised, the Corporation or the Commissioner shall be at liberty to proceed against the petitioner in accordance with law. Writ Petition is disposed of accordingly. (D.K.DESHMUKH,J) (A.R. JOSHI,J)