Calcutta High Court
State Of West Bengal And Ors vs Biswambhar Basu on 19 May, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELALTE JURISDICTION
IN AN APPEAL ARISING OUT OF
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
A.P.O.T. No. 162 of 2010
W.P. No. 1543 of 2008
G.A. No. 983 of 2010
STATE OF WEST BENGAL AND ORS.
VS.
BISWAMBHAR BASU
BEFORE:
The Hon'ble Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Justice SHUKLA KABIR (SINHA)
For Appellant : Mr. Murari Mohan Das, Adv.
For Respondent : Mr. Debabrota Saha Ray, Adv.
Mr. Pinjjal Bhattacharya, Adv.
Heard on : 29.07.2010, 4.08.2010, 14.01.2010 Judgment on : 19.05.2011.
PINAKI CHANDRA GHOSE, J.: This appeal is directed against judgment and order dated 24th December, 2009 passed in W.P. No. 1543 of 2008 when His Lordship Hon'ble Single Judge held that proceeding against the writ petitioner without supplying report would result in violation of principles of natural justice 2 and His Lordship was pleased to quash the impugned order of the appellate authority. His Lordship was pleased to quash the notice to show-cause and further directed to restore the licence in favour of the writ petitioner. However, liberty was granted to the authorities to consider the question for issuing a fresh show-cause notice on the basis of the report.
The facts of the case briefly are as follows:-
The petitioner was a fair price shop owner and his licence for operating the said fair price shop had been terminated by the authority. It is the case of the writ petitioner that all the books of accounts in respect of the fair price shop of the petitioner containing in a bag carried on by one of the employees in his bicycle were stolen along with the cycle on 2nd February, 2007.
On 9th February, 2007 a complaint was lodged before the Inspector-in- charge, Bidhannagar (East) Police Station and the incident of stolen has duly been intimated to the concerned office of the Food & Supplies Department.
On 1st June, 2007 the Inspector and Sub-Inspector (F&S) visited the fair price shop of the petitioner and demanded production Register. The concerned employee expressed his inability to produce the same because the same has been sent to the Director of Rationing Government of West Bengal for his perusal. Hence, 14th June, 2007 show-cause notice was issued. The writ petitioner duly 3 replied the said show-cause notice on 26th June, 2007. On 5th July, 2007 the license of the petitioner for such fair price shop was suspended temporarily. Subsequently the order of suspension was confirmed. On an appeal filed by the writ petitioner the licence of writ petitioner in respect of fair price shop was cancelled.
Being aggrieved the writ petitioner filed a writ petition before this Hon'ble Court being W.P. No. 1004 of 2008. On 22nd July, 2008 the Hon'ble Court disposed of the writ petition by setting aside the order passed by the Appellate Authority and further directed the Appellate Authority to re-hear the matter within a period of 3 weeks. On 25th August, 2008 despite direction of the Hon'ble Court since no steps were taken by the respondents, a contempt notice was served upon the authority and the hearing was fixed on 16th September, 2008. Since the report of the enquiring team was not furnished to the petitioner, the instant writ petition was filed on the ground that whether non-supplying of enquiry report, punishment can be imposed and whether such action on the part of the authority is in violation of natural justice.
The Court, after hearing the parties, allowed the writ petition. Being aggrieved State filed this appeal.4
The appellant raised an issue in the appeal whether the report of J.K. Baidya is at all necessary to supply to the writ petitioner, and whether for non- supply of such report of J.K. Baidya proceeding is vitiated and can be quashed.
It is the case of the appellant that the report of J.K. Baidya dated 29th May, 2007 is nothing but an information. The shop was closed on the date of inspection. The show cause notice dated 14th June, 2007 was not based on an enquiry report which would be evident in the order dated 5th July, 2007. Therefore, it is submitted that the writ petitioner can not be prejudiced for non supply of such report.
It is submitted that it is well settled proposition of law that if any letter or document if not supplied to the delinquent and for such non-supply of document if the delinquent does not prejudice then proceeding would not vitiate and on that ground proceeding can not be quashed.
It is further submitted that by a letter dated 2nd August, 2008, a copy of the inspection report was supplied to the writ petitioner, but the writ petitioner to mislead the Hon'ble Court did annex the said letter dated 2nd August, 2008 excepting the copy of the enquiry report. He further submitted that the report of J.K. Baidya would appear at page 259 of the paper book. Therefore, it is submitted that since the report has been annexed then there is no question of 5 non-supply of said report and then that cannot be a ground for setting aside the order of the Appellate Authority.
It is further submitted that by the said order the Hon'ble Single Judge has already quashed the notice of show-cause and directed to restore the licence in favour of the writ petitioner. It is also submitted that due to non-supply of the said report to the writ petitioner no prejudice was caused to the writ petitioner. In support of such contention he placed reliance on the following decisions:-
(i) 2010 (3) SCC Page 556 (Sarv U P Gramin Bank Vs. Manoj Kumar Sinha);
(ii) 2007 (7) SCC Page 679 (Markfed Vanaspati & Allied Industries Vs. Union of India);
(iii) AIR 1970 SC Page 802 (Sm. Gunwant Kaur and Ors. Vs. Municipal Committee, Bhatinda and Ors.).
Accordingly, it is submitted that the order should be set aside. On the contrary, it is submitted that despite requests, copy of the reports allegedly submitted by the enquiring personnel were not supplied to the petitioner nor those enquiring personnel were called upon to attend the said hearing, providing opportunity to the petitioner to examine and/or cross-examine them.
6
It is further submitted that the Hon'ble Trial Judge was pleased to grant time to the respondents to file an Affidavit-in-Opposition which was not filed at all and it would be evident from the judgment itself where the Hon'ble Judge specifically hold as follows:-
"... In spite of direction no affidavit in opposition has been filed by the respondents and as such the statement of the petitioner goes untraversed The report, non-availability of which has been specifically argued by the petitioner, has been made by Jamini Baidya, Deputy Director of Rationing, which appears to have been considered by the licensing authority as also the appellate authority.
I am satisfied that in the absence of making available such report, the proceeding would stand vitiated for non-compliance of the principle of natural justice. Accordingly, the order of the appellate authority shall stand quashed. The appellate authority is directed to re-hear the appeal upon making available to the petitioner, within two weeks from the date of communication of this order, copy of the report on which reliance was placed by the adjudicatory fora. The appeal should be heard and disposed of within a period of three weeks from the date of making available the report upon giving the petitioner opportunity of hearing by the concerned appellate authority.7
The writ petition is allowed in the above terms. There shall be no order as to costs..."
The learned Advocate for the respondent also drew our attention to the letter dated 28th August, 2008 and in the said letter it has been specifically stated as follows:-
"Non-supply of such relevant document despite specific direction of the Hon'ble Court draw presumption that there is no existence of any such report, although relying such fictitious report, final order of termination has been issued by the Licensing authority and confirmed by the appellate authority subsequently."
It is further submitted that the show cause notice is dated 14th June, 2007 and the order of suspension is dated 5th July, 2007. The Hon'ble Trial Judge directed the State Respondents to supply the report of Mr. Jamini Baidya referred to and relied upon in the aforementioned two orders. The letter dated 11th July, 2007 are findings of Jamini Baidya and it is not an enquiry report.
It is further submitted that in the second writ application the State respondents filed an Affidavit-in-Opposition questioning the maintainability of the second writ application.
8
It is also submitted that the second writ application was filed on the ground of non-compliance with the earlier order of the Hon'ble Court. It is further contended that in spite of the order passed by the Court no step was taken to supply said report.
It is contended that significantly in the second writ application the respondents in their Affidavit-in-Opposition stated "the fact remains that the petitioner himself admitted that he duly received the said report". It is stated that this is nothing but an attempt to mislead the Hon'ble Court.
It is further contended that the Hon'ble Trial Judge held the contention of the state is untenable and ultimately passed the direction quashing the show cause and directing restoration of the license and a liberty to the authorities to consider question for issuing a fresh show cause notice.
It is also contended that the point for consideration in this appeal is the legality of further proceeding in the departmental appeal in violation of the earlier order of this Hon'ble Court.
It is submitted that no further steps could be taken in the appeal so as to render the order of the Hon'ble Judge, in the earlier proceeding, infructuous. Reliance is placed on the two following judgments:-
9
(a) In the case of Madan Mohan Pathak Vs. Union of India & Ors, reported in AIR 1978 SC 803 where the Supreme Court held as follows:-
"So long as the judgment stands it can not be disregarded or ignored and it must be obeyed by the Life Insurance Corporation."
(b) In the case of Commissioner, Karnataka Housing Board Vs. C. Mudalaiah reported in 2007 (7) SCC 689 the Supreme Court held as follows:-
"...We are of the considered opinion that once a direction is issued by a Competent Court, it has to be obeyed and implemented without any reservation. If an order is passed by a Court of Law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it can not be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously effect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected..." 10
It is further submitted that non-supply of report is nothing but violation of principles of natural justice. In these circumstances, he submitted that the appeal should be dismissed.
After considering the facts of the case and materials placed before us it appears to us that the Director General of Food & Principal Secretary, Food & Supplies Department, in his order dated 19th July, 2007, observed that unless the case is concluded and final order is passed by the competent authority, it will be premature to take up the matter by the appellate authority.
It appears from the fact that the Director of Rationing duly examined the records, and photocopy of the Register and the statement of Jamini Kumar Baidya dated 11th July, 2007, but no progress was made. Hence, the appeal was preferred by the writ petitioner and thereafter the fresh show cause notice was issued on 25th September, 2007. The petitioner replied to the said notice denying such allegations and by an order dated 5th November, 2007, the Director of Rationing cancelled the licence of the writ petitioner. Then the petitioner preferred an appeal against the said order and by an order dated 30th April 2008 the said authority confirmed the order of termination of the petitioner's licence.
Then the writ petitioner filed the writ petition W.P. No. 1004 of 2008 challenging the entire proceeding and the Court passed an order dated 22nd July, 2008 which is reproduced hereinafter:-
11
"The petitioner herein has challenged on order of termination of his licence for operating a fair price shop granted under the provisions of the West Bengal Urban Public Distribution System (Maintenance & Control) Order, 2003. Initially, a show cause notice was issued against the petitioner alleging certain irregularities in the running of his shop and his licence was suspended. Thereafter, the matter was examined by the adjudicating authority and the said authority passed the order termination. I do not think there is any necessity of discussing the entire order of the adjudicating authority as Mr. Saha Roy, learned advocate appearing for the petitioner, has confined his submission in assailing the impugned order of termination of the ground that the material on which reliance was placed by the adjudicating authority was not made available to him. In paragraph 24 of the writ petition, it has been specifically pleaded that despite request, copy of the report submitted by the enquiring personnel has not been supplied to the petitioner and the enquiring perjuring personnel was not called for to attend the hearing, providing opportunity to the petitioner to cross examine them.
In spite of directions, no affidavit in opposition has been filed by the respondents and as such the statement of the petitioner goes untraversed. The report, non-availability of which has been specifically argued by the 12 petitioner, has been made by Jamini Baidya, Deputy Director of Rationing, which appears to have been considered by the licensing authority as also the appellate authority.
I am satisfied that in the absence of making available such report, the proceeding would stand vitiated for non-compliance of the principle of natural justice. Accordingly, the order of the appellate authority shall stand quashed. The appellate authority is directed to re-hear the appeal upon making available to the petitioner, within two weeks from the date of communication of this order, copy of the report on which reliance was placed by the adjudicatory for a. The appeal should he heard and disposed of within a period of three weeks from the date of making available the report upon giving the petitioner opportunity of hearing by the concerned appellate authority.
The writ petition is allowed in the above terms. There shall be no order as to costs."
In spite of such order report has not been made available. A point was taken before the Hon'ble Single Judge that when the appeal is pending before the appellate authority no successive writ petition is maintainable and can be entertained.
13
The writ petitioner submitted that the failure to furnish the report in pursuance of the decisions of this Court gives a fresh cause of action. The Court held that non-supply of a report directed to be furnished by the Court thus constitutes a fresh cause of action and reliance was placed on 1996 (6) SCC 294 (Commissioner of Income Tax, Madurai Vs. T.V. Sundaram Iyengar & Sons Limited) and the Hon'ble Single Judge came to the conclusion that "I am of the views that the failure to furnish such report constituted a fresh cause of action and hence the two writ petitions could not be treated as successive writ petitions for the same relief.
Thereafter the question decided by the Hon'ble Single Judge as to whether the writ petition can be dismissed. Court after considering the facts and materials placed before it held as follows:-
"This I do not think nature of suppression is of such degree which would result in rejection of the writ petition itself."
The next question decided by the Court is whether the report has been supplied by the authority to the writ petitioner and the Court came to the conclusion that:-
"That since admittedly there is no report signed by Jamini Baidya or no material on the basis of which it can be ascertained that Jamini Baidya accompanied the inspection team, the appellate authority should have had 14 considered that factor first and test the validity of the show cause notice in that context. In the vent there is no report of Jamini Baidya, then in my view the proper course for the appellant authority should have been to quash the proceedings and give an opportunity to the respondents to initiate fresh action on the basis of the inspection report. I hold so because though in the subsequent stages, various irregularities have been alleged against the petitioner, the report by which such proceeding was initiated remains unserved on the petitioner. In fact, almost at every stage of the proceeding, the petitioner has sought for such report. In the order of this Court in W.P. No. 1004 of 2008, the report of Jamini Baidya was directed to be furnished. In the order dated 5th July, 2007, in which the order of suspension of the petitioner was directed to continue, it has been stated, "whereas it appears from the Enquiry Team headed by Sri Jamini Baidya DDR (ES)...... "Conclusion under these circumstances became inevitable that the proceedings against the petitioner were initiated on the basis of a report which does not exist."
We have noticed the decision of Sarva Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha reported in 2010 (3) Supreme Court Cases 556, which has been cited by Mr. Das, the learned Advocate appearing on behalf of the State, the Supreme Court held that in absence of any prejudice having been caused to the respondent (employee), no failure of justice has occasioned by non-supply of enquiry report. But it appears to us that in the present case, the steps have been taken by the Appellate Authority on the basis of the enquiry report and the prejudice having been caused to the writ petitioner by non-supply of the same. It also appears to us that in the absence of such enquiry report it would certainly 15 come within the purview of violation of natural justice. Therefore, the decision cited by Mr. Das cannot be a help in favour of his client.
Mr. Das, learned Advocate of the appellant also relied upon the decision in the case of Markfed Vanaspati & Allied Industries Vs. Union of India reported in 2007 (7) Supreme Court Cases 679. In our considered opinion, the decision has no application in the facts and circumstances of the present case.
He also relied upon the decisions in the case of Sm. Gunwant Kaur & Ors. Vs. Municipal Committee, Bhatinda & Ors. reported in AIR 1970 Supreme Court 802. In our considered opinion, the decision has no scope of application in the facts and circumstances of the present case.
Another decision in the case of Commissioner of Income Tax, Madurai Vs. T.V. Sundaram Iyengar & Sons Limited reported in 1996 (6) SCC 294 which is also cited by Mr. Das, in our considered opinion, has no application in the present case. Therefore, cannot be a help to the appellant in the given facts.
We have also found that the additional and specific charges have been brought against the petitioner. But those charges also based on the report of Jamini Baidya and, therefore, in our considered opinion the Hon'ble Single Judge correctly held that proceeding against the petitioner without supplying such report would result in violation of the principles of natural justice and in our 16 opinion the Court correctly came to such conclusion and quashed the impugned order of the Appellate Authority.
After considering the materials and the submissions made before us we find that the Hon'ble Single Judge correctly came to the conclusion and the reasons given by His Lordship cannot be question by us and in fact we accept such reason given by His Lordship in coming to His Lordship's conclusion. In our opinion the said order does not suffer from any irregularity or illegality. We do not find any merit in the appeal.
For the reasons stated hereinabove this appeal is dismissed. Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(PINAKI CHANDRA GHOSE, J.) I agree.
(SHUKLA KABIR (SINHA), J.)