Calcutta High Court
Sujit Saha & Anr vs The State Of West Bengal & Ors on 13 February, 2009
Author: Aniruddha Bose
Bench: Aniruddha Bose
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Aniruddha Bose
W. P. No. 751 of 2008
Sujit Saha & Anr.
Vs.
The State of West Bengal & Ors.
Advocate for the Petitioner: Mr. K. K. Maitra (Sr. Adv.)
Mr. D. Saha Roy
Advocate for the State: Mr. K. K. Mukherjee
Judgment On: 13.02.2009
ANIRUDDHA BOSE, J.:-
1. The petitioners are the joint owners of the fair price shop under a licence
which was being operated under the provisions of the West Bengal Urban Public
Distribution System (Maintenance & Control) Order, 2003. In this writ petition,
they challenge an order passed by the Director of Rationing, West Bengal on 24th
April 2008 cancelling their licence. This order appears to have been passed in
exercise of power under the provisions of clause 26 of the said Control Order. The
Director of Rationing has directed forfeiture of entire security amount which was
deposited by the petitioners in addition to cancellation of their licence. The
allegations against the petitioners in substance are mis-utilisation of public
distribution commodities and contravention of the provisions of paragraph 18 of
the 2003 Control Order, as also violation of licensing conditions.
2. The dispute over allegations of irregularities in running the shop had
arisen in the year 2004. On 25th October 2004, a notice to show cause was
issued against the petitioners on the charge of excess shortage of stock and for
failing to produce proper accounts and certain other records. In this notice,
which I shall henceforth refer to as the first notice, violation of certain provisions
of the West Bengal Rationing Order, 1964 was alleged. By that time, however, the
Control Order of 2003 had become operational and the 1964 Order stood
repealed. I shall refer to these Control Orders in the later part of this judgment as
the "1964 Order" and "2003 Order". The petitioners sent a representation to the
authorities for withdrawal and/or revocation of the show cause notice dated 25th
October 2004 primarily on the ground of repeal of the 1964 Order.
3. No further step against the petitioners appear to have had been taken after
their response to the first show cause notice. However, a further show cause
notice was issued on 9th November 2006, broadly repeating the irregularities in
maintenance of stock, which formed the subject matter of the earlier notice of
2004. I shall describe the notice of 9th November 2006 in this judgment as the
second notice. The petitioners were directed to answer the allegations made in
the second notice within seven days from the date of receipt of the same. The text
of this notice is reproduced below:-
"Govt. Of West Bengal
Deptt. Of Food & Supplies
Office of the D.D.R.(IA-I)
11/A, Mirza Galib Street
Kolkata - 87
Memo No. 2807/IA-I
To
Sri Sujit Saha & Sri Chandan Saha
Proprietors of FPS 1773
Sub-Area - Ballygunge
Sub : Show Cause Notice.
Whereas it appears from a report since submitted by the Deputy
Director of Rationing, Initial Area-I, that following irregularities have
been detected by a squad of the D.D.R.I.A-I during the time of
inspection in your Shop No. 1773 on 22.7.04.
1. That no books of accounts, except the Stock Register of APL Wheat
and stock Register of BPL commodities, were found by the
Inspecting Office of the said squad at the time of their visit in your
shop on 22.7.04.
2. That on physical verification of stock of the following items on
excess shortage of the following commodities had been
detected by the Inspecting Officers to the extent as mentioned below:-
Name of the items Amount of excess shortage
a) APL Wheat 33,59,500 Qntls.
b) BPL Wheat 02,50,000 Qntls.
c) BPL Wheat 01,46,500 Qntls.
d) BPL Sugar 02,81,700 Qntls.
3. That you were asked to appear before the Dy. Director of Rationing
IA-I on 23.7.04 positively alongwith all the books of accounts and
used Cash Memos, but you have violated and/or ignored the
instructions of the squad.
-AND-
Whereas above irregularities are tantamounts to contravention of the
provisions contained in Para 18(iii) and 18(iv) of the West Bengal
Public Distribution System (Maintenance & Control) Order, 2003.
Therefore, I, the Director of Rationing, West Bengal, hereby ask you to
show cause within seven (7) days from the date of receipt of this notice
in writing as to why disciplinary action will not be taken against you
as per Para 26 of the above said order.
Failure to reply within the stipulated period will lead to exparte action
without reference.
The show cause Notice issued earlier vide this office no. 2572/IA-
dated 25.10.2004 stands modified by this notice.
Director of Rationing
West Bengal."
4. In their reply to the second notice, (which was in the nature of an interim
reply) the petitioners took objection as regards the legality of the notice. The
petitioners' main objection to this notice was that the proceeding against the
petitioners ought to have been treated as dropped as upon receiving the reply of
the petitioners to the earlier notice dated 25th October 2004, no further step was
taken. The allegations of irregularities in the petitioners' operations were also
refuted. A point was also taken in the reply that since the petitioners were not
issued appointment letter or granted licence under the 2003 Order, no
proceeding could be initiated against them under the 2003 Order. The
petitioners, in their reply had also asked for a copy of the report of the Deputy
Director, IA-I, which was referred to in the notice, and copies of various
documents, which it appears, were seized by the enquiry squad of the food and
supplies department in course of their enquiry on 22nd July 2004. To meet the
expenses for copying such documents, a bank draft for rupees five hundred was
enclosed to the reply dated 17th November 2006.
5. Thereafter on 23rd April 2007, a notice was issued fixing a hearing in
respect of the show cause notice dated 9th November 2006, scheduled for 27th
April 2007 in the office chamber of the Director of Rationing.
6. A further representation was made by the petitioners on 26th April 2007 in
which their request for supply of the report of the Deputy Director and also
copies of the other seized documents were repeated. It does not appear that the
authorities had responded to the petitioners' request made in their
representation dated 26th April 2007. The petitioners also did not attend the
hearing scheduled on 27th April 2007. A further memorandum was issued by the
Director of Rationing on 30th August 2007 directing the petitioners to appear
before him on 5th September 2007, on which date the petitioners appeared before
the Director of Rationing. It has been pleaded in the writ petition that on that
date, the said authority had required the petitioners to produce the seizure list
dated 22nd July 2004, and the petitioners claim to have furnished the photocopy
of such seizure list on 10th September 2007. No further action in respect of the
second notice appears to have had been taken by the authorities until certain
further allegations were made against the petitioners in pursuance of an
inspection conducted on 22nd February 2008. The copies of the report or
documents, as sought for, were also not supplied to the petitioners.
7. On 22nd February 2008, the Chief Inspector (Food & Supplies) along with
an inspector of the same department had visited the petitioners' fair price shop
and seized certain documents including the books of accounts on the allegation
of excess shortage of ration articles. The petitioners, however, allege that none of
the officers who visited their shop took physical measurement of the ration
articles on that date. On that date, in the petitioners' inspection book, a directive
was issued to the following effect:-
"In connection with the excess shortage of APL wheat 02.05.235, BPL
rice 01.00.837 and BPL wheat 00.43.150 mt which detected on p.v. on
22.2.2008, the licensee of F.P.S-1773 is hereby directed to submit an
explanation to R.O(s) within 3 days under what circumstances the
same has been found excess shortage in the respective stocks.
P.V. Chart is enclosed after being adjusted the excess shortage of the
respective stock register.
Sd/- Sd/
Area Inspector Chief Inspector, R.O(s)
22.2.2008 22.2.2008
Received the BPL Cash memo being no. 301 to 400 duly certified and
APL cash memo being no. 1601 to 1700 duly certified the above cash
memo left on 22.2.2008 for the interest of the (illegible)
Sd/
C.I, R.O.S.
22.2.2OO8"
8. The petitioners again refuted these allegations in writing by a
communication dated 25th February 2008, a copy of which has been annexed to
the writ petition marked "P10". Hearing was posted on 2nd April 2008, in
connection with their fair price shop before the Director of Rationing in which the
petitioners participated. The intimation of such hearing was given to the
petitioners by the Deputy Director of Rationing and Officer-in-Charge, Legal and
Licencing Cell, Directorate of Rationing. The hearing notice which was issued on
24th March 2008 was captioned as "Ref: Their letter dt. 25-02-08". On that date
the hearing was concluded, and on 24th April 2008, the order cancelling the
petitioners' licence was issued by the Director of Rationing. The text of this order
is reproduced below:
"O R D E R
On the basis of hearing held on 02.04.2008 in respect of PPS-
1773 under Ballygunge Sub-Area.
1. WHEREAS on surprise visit and after physical verification of PDS
commodities of the FPS-1773, the Food Officials of the Rationing
Office, Ballygunge, on 22.2.2008 have detected Shortage (excess) of
PDS Commodities as follows:-
100% weighment:
Date Commodity Closing Actual stock Allowable Excess
balance after P.V. Shortage Shortage
22.2.08. APL Wheat 12-91-600 10-47-00 0-39-365 02-05-235
BPL Rice 07-34-000 06-23-000 0-10-163 01-00-837
BPL Wheat 05-99-750 05-43-000 0-07-600 00-49-150
-AND-
2. WHEREAS on the spot, through 'Inspection Book' the owners of the
PPS-1773 was asked to Show Cause for such misappropriation of
highly subsidised PDS commodities and the reply as submitted by the
said licensees of the PPS, dated 25.02.2008 was not at all convincing;
- AND-
3. WHEREAS the physical verification of the Stock was done after
100% weighment under their presence & signature, the licensees of
the said PPS were asked to appear before the Director of Rationing,
West Bengal on 02.04.2008 for giving an opportunity of being heard in
terms of para 26 of the West Bengal Urban PDS (Maintenance &
Control) Order, 2003 and at the said hearing the said licensees have
submitted their deposition admitting that they often divert ration-
articles to the local people other than rationees & beyond the scope of
the above said Control Order:
-A N D -
4. WHEREAS it reveals from the record that the same licensees of the
FPS-1773 were asked to Show Cause previously vide memo no.
2572/IA-I dated 20.10.04 for mis-appropriation of huge stock of PDS
Commodities to the extent as mentioned below, after physical
verification with 100% weighment:
Date Commodity Excess Shortage
22.07.04 APL Wheat 33 - 59 -500
BPL Rice 02 - 50 - 000
BPL Wheat 01 - 46 - 500
BPL Sugar 02 - 81 - 700
5. WHEREAS in reply to the said Show Cause they have taken a plea
that "the charges framed against them for contravention of the Order
referred to in the 'notice' no longer exist since the Govt. has repealed
the West Bengal Rationing Order 1964."
-AND-
6. WHEREAS under para 30 (Part IV Miscellaneous) of the West
Bengal Urban PDS (Maintenance & Control) Order, 2003, it is clearly
stated that "such repeal shall not affect"; (d) any penalty, forfeiture or
punishment incurred in respect of any offence committed against any
of the said Orders; or (e) any investigation, legal proceeding etc."
- AND-
7. WHEREAS having regard to the above facts & circumstances I am of
the opinion that the above mentioned licencees are habitual offenders
in so far as it relates to distribution of PDS Commodities to the
Rationees as per the West Bengal Urban PDS (Maintenance & Control)
Order, 2003;
- NOW-
8. THEREFORE taking all above aspects into consideration, and in
exercise of the Power conferred upon me by Para 26 of the West
Bengal Urban PDS (Maintenance & Control) Order, 2003, I, Sri Dipak
Ghosh, the Director of Rationing, West Bengal, do hereby cancel the
licence and appointment granted to i) Sujit Saha & ii) Chandan Saha,
as licensees of FPS-1773 with forfeiture of entire security for
misappropriation of PDS Commodities and Contravention of Para 18
and licensing conditions of the said Control Order and in the interest of
the PDS.
9. L E T the copies of this Order be communicated to all concerned.
Sd/- (23/4/08)
Director of Rationing,
West Bengal"
9. It is this order which is assailed by the petitioners in the present writ
petition. The main submission of the petitioners is that the notice on the strength
of which the hearing was conducted on 2nd April 2008 was not a notice to show
cause in terms of the provisions of the 2003 Order. The petitioners' contention is
that their licence could not be directed to be cancelled without issuing a proper
notice to show cause in terms of paragraph 26 of the 2003 Order. In this regard
my attention has been drawn to paragraph 26 of the 2003 Order which provides:
"26. Power to suspend or cancel a licence:- If a licensee or his
agent or servant or any other person acting on his behalf contravene
any of the provisions of this Order or any of the regulations made
thereunder or any of the conditions of his licence the Director shall
issue a notice to the licensee for showing cause of such contravention.
The Director may forthwith temporarily suspend the licence, if in the
opinion of the Director immediate suspension is necessary in the
interest of the general public.
The Director my, by order, after giving the licensee an opportunity of
stating his case in writing and after giving him an opportunity of being
heard and after recording the reasons therefore, suspend, vary or
cancel the licence and appointment or revoke the order of suspension
within 30 days from the date of suspension of the licence."
10. The case of the petitioners is that in the present case no notice was issued
by the Director of Rationing in terms of paragraph 26 of the 2003 Order, which
according to them is the condition precedent for passing an order for cancellation
of licence, and the order of cancellation cannot be sustained because of non-
compliance of such condition precedent.
11. It has also been argued on behalf of the petitioners that reference in the
order to the petitioners as habitual offenders was without any basis and
punishment could not be imposed on that basis. On behalf of the petitioners,
Mr. Maitra, learned Senior Advocate argued that the impugned order could not
be sustained also because of violations of the principle of natural justice. His
case on breach of the principle of natural justice was founded on two planks.
Firstly, it was contended that the petitioners were denied the opportunity of
having access to the report of the authority, which formed the basis of the first
two show cause notices. It was also contended that the order impugned did not
disclose reasons. The authorities on which reliance was placed in support of such
submissions were the decision of the Hon'ble Supreme Court in the case of
Union of India Vs. H. C. Goel (AIR 1964 SC 364). Two judgments of this Court
in the cases of Sujit Das Vs. The West Bengal Board of Secondary Education
reported in [(1997) 2 CLJ 497] and Sachi Nath Ghosh & Ors. Vs. West Bengal
Board of Secondary Education & Ors. [1976(2)CLJ 289] were also cited on this
count.
12. On the aspect of the allegations relating to detection of irregularities on the
basis of inspection of the petitioners' shop by the officers of the department on
22nd February 2008, the petitioners' contention is that no proper notice to show
cause was issued to them before the hearing was held. The specific case of the
petitioners on this point is that before an order of cancellation is issued, the
licencee is required to be issued a notice by the Director. In the present case, no
specific notice to show cause was issued, but the inspecting authorities made an
endorsement on the inspection book requiring the petitioners to explain the
excess shortage. A proceeding for cancellation of the licence of the petitioners, it
was submitted, could not be initiated on that basis, but a further notice to show
cause was required to be issued by the Director.
13. Learned counsel appearing for the respondents defended the order of the
Director of Rationing and submitted that the petitioners are offenders in a number of cases involving misuse of public distribution commodities. It was argued that the petitioners had violated the provisions of the Control Order as well as the conditions of licence. As regards the earlier proceedings, his submission is that the proceeding was initiated in the year 2004 but could not be completed due to non-cooperation of petitioners themselves. He also argued that the documents sought for by the petitioners' could not be submitted at this stage after lapse of about four years.
14. In the affidavit-in-opposition filed on behalf of the respondents affirmed by one Monoj Chakraborty, the rationing officer of the concerned area, copies of certain inter-office memoranda pertaining to the visit of the inspectors to the shop of the petitioners have been disclosed. As regards reference to the 1964 Order, the respondents' case is that wrong reference to a statutory instrument in an order cannot invalidate it, if the power to issue such order can be otherwise traced to some valid source. The impugned order is also sought to be justified on the ground that the Director of Rationing decided to hear the petitioners only after going through the report and explanation offered by the petitioners. It has also been pleaded that the petitioners had, in course of hearing admitted the fault.
15. On the aspect of validity of the show cause notice to allegations in relation of excess shortage detected on 22nd February 2008, specific submission on the part of the respondents is that under the 2003 Order, the inspectors of the department are empowered to initiate proceeding and seek clarification in case of detection of excess shortage in terms of paragraph 25 of the 2003 Order. It was further submitted that the order, the validity of which is challenged in the writ petition, is an appealable order in terms of paragraph 27 of the 2003 Order. On this count, Mr. Mukherjee, the learned Advocate appearing for the respondents prayed for dismissal of the writ petition on the ground of there being an alternative remedy available under the statute itself.
16. I shall first deal with the objection on maintainability of the writ petition on the ground of existence of an alternative remedy. It is not in dispute that the order impugned could be appealed against in accordance with the provisions of paragraph 27 of the Control Order. But mere availability of an alternative remedy does not automatically oust the jurisdiction of the Writ Court to examine the validity of an administrative order. In the case of Whirpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998) 8 SCC 1, it has been held:
"15. 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 an 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."
17. In this writ petition specific case has been made out that the petitioners' fundamental right to carry on business has been breached upon passing of the impugned order of cancellation. In paragraph 29 (iii), (iv), (v), (vi), (vii) and (viii) of the writ petition which contains the grounds on which the writ petition is founded, specific case has been made out of violation of the provisions of Articles 14, 19(1)(g), 21 and 300A of the Constitution of India as well as breach of principle of natural justice. Thus in my opinion, in the facts of the present case, the petitioners would be entitled to invoke the Constitutional Writ Jurisdiction of this Court for redressal of their grievances arising out of the impugned order. The petitioners satisfy the "Whirpool" test laid down by Hon'ble Supreme Court in the case reported in (1998)8 SCC 1 for maintaining the writ petition.
18. Next comes the question as to whether the provisions of the 2003 Order was complied with by the Food & Supplies authorities before passing the order cancelling the licence of the petitioners on the ground of alleged irregularities detected on 22nd February 2008. Clause 26 of the 2003 Order, which has been reproduced in the earlier part of this judgment, empowers the Director to cancel the licence of a dealer. But such order can be passed only after giving the dealer an opportunity of stating his case in writing and after giving him an opportunity of being heard and after recording the reasons. In this case so far as the discrepancies alleged to have been detected by the inspectors' of the department on 22nd February 2008, there was no show cause notice from the Director. The definition of Director in Clause 2(i) of the 2003 Order includes any person not below the rank of Assistant Director of Rationing in department of Food & Supplies, West Bengal, authorised by the Director in writing to perform all or any of the functions of the Director under the Control Order. No case has been made out by the respondents that the Area Inspector or the Chief Inspector holds rank equivalent to that of an Assistant Director, and that they had been authorised by the Director to discharge the duties of the Director. Clause 25 of the 2003 Order, on which reliance was placed by the respondents permit officers holding rank of Sub-inspector or any other post superior to that rank to cause inspection of the premises and to require furnishing of informations on and stocks, accounts etc. But the notice dated 22nd February 2008 endorsed on the inspection book cannot be treated to be a valid show cause notice in pursuance of clause 26 of the 2003 Order. In my opinion consideration of such notice and explanation furnished in response thereto would not empower the Director straightway to hold a hearing on the question of cancellation of the licence of the petitioners. Issuing of a notice in terms of Clause 26 of the 2003 Order is essential before such a hearing is posted. The explanation furnished by the petitioners in response to a directive issued by an Inspector may be examined by the Director for deciding as to whether he shall initiate proceeding for contravention of the provisions of the Control Order or conditions of licence. If he is satisfied that the situation warrants issuance of such a proceeding, then he may require the dealer to show cause for such contravention. But before directing cancellation of licence, the Director is required to give opportunity to the petitioner to state his case in writing, as also give such dealer opportunity of being heard. Thereafter, an order of cancellation can be passed, after recording reasons. This is the requirement of the statute, and it is only after following this process penalty may be imposed on a dealer, in the form of variation or suspension of licence, apart from issuing an order for cancellation.
19. In the case of the petitioners, the Director has proceeded to hear the petitioners' case on the basis of the report of the inspectors and the explanation of the petitioners to the requisition of the inspectors. Such a course is contrary to the scheme of the Control Order. It is impermissible for a statutory authority to exercise power in a manner not prescribed in the statute. The ratio of the decisions of the Hon'ble Supreme Court in the cases of J. N. Ganatra Vs. Morvi Municipality, Morvi reported in 1996(9) SCC page 495 and Jamaluddin Ahmad Vs. Abu Salah Najmuddin & Anr. reported in (2003) (IV) SCC 257, clearly prohibit exercise of power by the statutory authority in deviation of the statutory scheme.
20. Minor irregularities in the decision making process may save an order, but in my view the nature of irregularity which resulted in cancellation of the petitioners' licence is not of a trivial nature which could save the order. The issuance of a show cause notice itself involves some element of exercise of a discretionary power and the decision to issue a notice to show cause has to be taken upon considering various factors. The Control Order vests such power or authority on the high ranking authority, being the Director. I do not think this process can be bypassed or short-circuited, and if the Director straightway gives a hearing to a dealer on the allegation of irregularities on the basis of explanations called for by officers holding much inferior ranks, and the condition precedent for issuance of a show cause notice in terms of Clause 26 of the 2003 Order remains unsatisfied, the consequential order of cancellation of the licence would stand invalidated even if such order is passed by the Director.
21. In the affidavit-in-opposition, a photocopy of a handwritten note, which appears to be the recordal of the proceeding in the hearing before the Director on 2nd April 2008 has been annexed. In this document, it has been recorded that the petitioners stated that as their shop is located in a slum area, they often have to divert ration articles to the local people as per their demand. It also appears from this document that the petitioners have prayed for mercy for their lapses. Could such statements justify the order which has been assailed in this writ petition, even if no proper notice requiring explanation is issued in terms of paragraph 26 of the 2003 Order?
22. In my opinion, they would not. The statements contained in Annexure "R3" are not admission of guilt on charges made against the petitioners but are statement of a general nature relating to diversion of stock. Excess shortage, for which explanation was called for has not been proved. At least there is no finding to that effect. Moreover, for the reasons which I have discussed in the earlier paragraphs of the judgment, in my opinion the hearing itself was without the authority of law, no show cause notice having been issued against the petitioners. The hearing itself being without the authority of law, any development in course of hearing cannot justify or legitimise any consequential actions. Before passing the order of cancellation of licence and forfeiture, it was incumbent upon the Director himself to call for explanation from the petitioners before he passed the impugned order.
23. But the alleged irregularity in stock position of 22nd February 2008 was not the sole ground on which the petitioners' licence was cancelled. There is also reference to the irregularity in the stock position in the form of excess shortage which was the subject of notice dated 25th October 2004. This was also referred to in the order impugned. But in the order, I do not find that there is any finding as regards allegations of excess shortage in relation to the inspection or enquiry which took place on 22nd July 2004. The original notice to show cause was issued on 25th October 2004. In that notice violation of various provisions of the West Bengal Rationing Order, 1964, as well as certain other orders of Director of Rationing dated 11th April 1972 were alleged. Thereafter on the same set of allegations a fresh notice was issued in which contravention of provisions of paragraphs 18(iii) and (iv) of the 2003 Order were alleged. The petitioners had asked for supply of the report of the Deputy Director of Rationing on the strength of which the original show cause notice, as also the second show cause notice were issued. Such report was not made available to the petitioners. Further in the notice of hearing dated 24th March 2008, there is no indication that such hearing was to be held in connection with the allegations against the petitioners in pursuance of the first two notices to show cause. In the impugned order, the Director of Rationing appears to have altogether ignored the prayer of the petitioners for supply of the report of the Deputy Director of Rationing, Initial Area- I as well as other documents.
24. The decision of the Hon'ble Supreme Court in the case of H. C. Goel Vs. Union of India (AIR 1964 SC 364), broadly lays down the guideline for dealing with allegations made before a quasi-judicial authority. In this case, it has been held:-
"It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules."
Though this judgment was delivered in a case relating to service jurisprudence, this authority lays down a wholesome legal principle which ought to apply to all fields of administrative law. I do not think any deviation ought to be made or a different principle should apply in connection with a proceeding resulting in termination of a licence granted under a Control Order promulgated under the Essential Commodities Act, 1955.
25. The entitlement of a delinquent to receive copies of documents or materials on the strength of which a quasi-judicial authority seeks to establish charges against him is now integral part of the administrative jurisprudence. In the case of Managing Director, ECIL Vs. Karunakar [(1993) 4 SCC 727], it has been held:-
"Hence it has to be held that when the Inquiry Officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the Inquiry Officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled agfainst him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the Inquiry Officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
26. On the question of necessity of supplying report to a delinquent on the basis of which he is sought to be implicated, two other authorities of this Court were cited on behalf of the petitioners, being Sachi Nath Ghosh & Ors. Vs. West Bengal Board of Secondary Education & Ors. (1970) 2 CLJ 289, and Sujit Das Vs. The West Bengal Board of Secondary Education [(1997) 2 LLJ 497]. The ratio of both these decisions is that supply of such report/document is essential requirement for compliance of the principle of natural justice.
27. The manner in which the case of the petitioners have been dealt with in relation to allegations of irregularities on the basis of which the first and second show cause notices were issued does not reflect proper application of mind on the part of the Director of Rationing. The hearing officer has not considered the defence of the petitioners at all, and solely based his decision on the defence of the petitioners on the aspect of non-applicability of 1964 Order.
28. The petitioners had also assailed the order on the ground that the same was not supported by reason. In the order, the allegations against the petitioners have been summarised in the first four paragraphs. In paragraph 5, the petitioners' defence in relation to the first show cause notice has been outlined. As it has been discussed earlier, the defence of the petitioners was that the 1964 Order having been repealed on the day the irregularities alleged, proceeding complaining of the breach of the 1964 Order could not be initiated. In the next paragraph, the plea of the petitioners on non-maintainability of the proceeding has been negated relying on the savings clause in the 2003 Order. This was in relation to one of the grounds of defence taken by the petitioners that before issuing appointment letter and grant of licence, the 2003 Order could not be invoked against the petitioners. Defence on certain other counts were also taken in reply to the second show cause notice, but those factors have altogether been ignored by the Hearing Officer.
29. In the sixth paragraph of the order, the savings clause in the 2003 Order has been referred to, and thereafter without any further discussion, the hearing officer has come to a finding that the petitioners were habitual offenders. In the absence of any reflection in the order about the mental exercise through which a quasi-judicial authority comes to a finding about the guilt of an errant dealer, such order in my opinion cannot be held to be a reasoned order, and would fail the test of compliance of the principle of natural justice. In the case of Mahabir Prasad (supra), it has been held:-
"7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi- judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him: it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just."
30. For the reasons discussed above, in my opinion the impugned order cannot be sustained. This order is fraught with a series of irregularities, being in violation of the provisions of the Control Order of 2003, and also for non- compliance of the principle of natural justice. The principle of natural justice has been violated for failure on the part of the respondents to supply the report of the Deputy Director of Rationing, and then because of non-disclosure of reasons. The impugned order is accordingly set aside. The respondents are directed to revive the licence of the petitioners and restore supply of the public distribution commodities to them.
31. The writ petition stands allowed in the above terms.
32. There shall, however, be no order as to costs.
33. Urgent Photostat certified copy be given to the parties, if applied for, as expeditiously as possible.
(ANIRUDDHA BOSE, J.)