DIGANT INDRAVADAN DAVE Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Mr. Shalin Mehta, learned Senior Advocate assisted by Ms. Aditi Raol, learned advocate for the petitioners and Ms. Mauna Bhatt, learned advocate for the respondent department. Ms. Aditi Raol, learned advocate is tendered draft amendment dated 12.10.2020. The same is taken on record and allowed to be carried out forthwith. As the issue of non issuance of show cause notice is considered, other contentions are not pressed by the learned advocate for the petitioner. Hence, the same are not dealt with and left it open for the parties to agitate before appropriate forum.

(2.) Without adverting to the factual matrix which has led to filing of this petition suffice it to note that all the petitioners are working as Data Entry Operator with the respondent Department. Based upon impugned circulars dated 1.5.2019 as well as 5.8.2019, the respondent authorities are to re-fix the pay and / or seniority of the petitioners. Mainly and predominantly such actions were sought to be taken by the respondent authority without issuing any show cause notice and without following the principles of natural justice, the petition was filed directly to this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India instead of filing proceeding before the Central Administrative Tribunal. This Court (Coram: Hon''ble Mr. Justice S.R. Brahambhatt and Hon'ble Mr. Justice V.P. Patel, as their Lordships when there) passed the following order:

(3.) It is quite evident from the record that the impugned circulars are sought to be implemented by the respondent authority without issuing any show cause notice. Though various contentions have been raised including contention of non maintainability of the present petition under Article 226 of the Constitution of India by the respondent Authority, the fact remains that the principles of natural justice are required to be followed before taking such action as contemplated under the impugned circulars. In the facts arising of this petition, therefore, the question of maintainability of is not necessary to be gone into as admittedly the actions are sought to be taken without issuing any show cause notice. We are fortified in our view by the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar Trade Mark reported in (1998) 8 SCC 1. Ms. Bhatt, learned counsel for the respondent authority submitted that question of availability of alternative remedy may be left open, even if this Court entertains this petition on the ground of no show cause notice. Without expressing any opinion on the contentions, which are raised by the petitioners as well as respondent authority before this Court and keeping all questions open including the question of maintainability direct petition under Article 226 of the Constitution of India, the respondents authorities are directed to issue show cause notice to the petitioners, if they desire to take any action pursuant to the impugned circulars. It is however made clear that such opportunity will be given only once and once show cause notice is issued, the petitioners shall be obliged to file their reply within the time given by the respondent authorities and after giving them an opportunity of being heard, the respondents authority may pass appropriate order in accordance with law. Even at the cost of repetition, it is provided that all the contentions are kept open and it is open for the respondent authorities to decide the issue in accordance with law. The petition is disposed of at this stage. Ms. Bhatt, learned advocate for the respondent department relied upon the correspondence dated 8.10.2020, copy of which is now submitted on record, which states that the respondent authority have now taken the decision not to implement the impugned circulars without issuing show cause notice. Such instructions issued by the respondent department after fortified the view taken by this Court.