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2004 DIGILAW 78 (JK)

Chandigarh Poultry Centre v. Union Of India

2004-03-31

S.K.GUPTA

body2004
1. Counter has not been filed Mr. S. S Nanda, learned Sr. CGSC submitted that the objections already filed in detail be treated as counter Prayer allowed. 2. With the consent of learned counsel appearing for respective parties, the petition is taken up for final hearing. 3. Petitioner was allotted contract for the supply of frozen meat for the year 2002-03 on the strength of a contract bearing No. CD-99 dated 18.4.2000. In pursuance of the contract, the petitioner was required to supply 11 lacs kg of frozen meat as per the approved items. The entire necessary arrangements and requisite infrastructure were required to be made by the petitioners-contractor in performance of the contractual obligations. The petitioner-contractor strictly followed the procedure as per the terms and conditions of the agreement. It is further submitted that after procuring the live stock, it is made available to the Supply Officer for anti-mortem at the ASC Butchery by the Veterinary Doctors of the respondents. Thereafter, such anti-mortem live stock is duly branded and segregated from the remaining live stock which is kept in the pipeline for further supply. The former is sent for slaughter to the Slaughter house and the same is again carried out in presence of the Veterinary Doctors and the Supply Officers. After slaughtering, the meat is kept in the room provided for the purpose under the custody of officers of respondents and the same is duly sealed by the said officers. It is further stated that again the team of same officers break open the seal next day and carry out the post-mortem examination of Carcasses and each Caracass is stamped by the Veterinary Doctor and his attendants after it is found fit for human consumption by the doctor. According to the petitioner, the carcasses, duly stamped by the Veterinary Doctor, are loaded in an insulated van in presence of the officers and after it is duly locked, is transported from the Butchery Reezing Plant under the escort of the officers of the respondents. No other person or representative of the petitioner-contractor sits in the van except the driver of the vehicle. It is also stated that after the van reaches the Cold Storage, the Incharge of the butchery, JCO and NCO hands over the carcasses to JCO Incharge of the plant against proper receipt in respect of counted number of carcasses. No other person or representative of the petitioner-contractor sits in the van except the driver of the vehicle. It is also stated that after the van reaches the Cold Storage, the Incharge of the butchery, JCO and NCO hands over the carcasses to JCO Incharge of the plant against proper receipt in respect of counted number of carcasses. The same are, thereafter, put in the chilling chamber for an overnight for removal of latent heat and the chilling room is sealed by the JCO Incharge of the plant. Again the chilled carcasses are re-inspected by the Veterinary Doctors and thereafter the meat is packed and weighed in presence of JCO Incharge of the Chilling Chamber and Veterinary Doctors of the respondents. Thereafter the packed meat is kept in the blast freezing chamber for frozen of meat at a temperature of minus 40 degree centigrade and the chamber is locked and sealed by the staff of 603 ASC Bn. and the keys remain with them. The petitioner further submitted that the entire process of cutting, packing and transportation is carried out under the supervision of respondents right from the time the live stocks are handed over to them by the petitioner and the entire domain, practical or physical, thereafter remains with the respondents to the exclusion of the petitioner or his agents till the dispatch of such meat to the air field for mounting base. The petitioner further submitted that at no point of time the supply remains abandoned or within the physical control of petitioner during this time. The petitioner is, however, aggrieved of communication dated 11.1.2003, by which he was informed about the mixing of 15 kgs inedible offal in 500 kgs frozen meat dispatched from 603 ASC Bn. To FSD Leh on 9.5.2002. The petitioner is, however, aggrieved of communication dated 11.1.2003, by which he was informed about the mixing of 15 kgs inedible offal in 500 kgs frozen meat dispatched from 603 ASC Bn. To FSD Leh on 9.5.2002. The petitioner clarified that it was impracticable and unimaginable to find a portion of the meat as inedible in view of the explained procedure carried out in presence of their officers, but was without any positive response and the respondents without affording an opportunity to the petitioner to explain his conduct, removed the firm of petitioner from the approved list of ASC Contractors vide Order No. 30704/A-09/ST5 dated 17.4.2003, which the petitioner seeks to quash by issuance of a writ in the nature of certiorari in invoking the writ jurisdiction of the Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir. The trouble, however, according to the petitioner, started on account of interse differences of two officers of the armed forces at the dispatch and receiving end of the supplies. 4. The respondents filed a detailed counter and submitted that though nobody sits in the vehicle with the driver at the time of transportation, but the vehicle belongs to the contractor and any mal-practice, if intended, can be done during the journey period to mix the pieces of inedible meat in the meat packets. It is further contended that the entire process of cutting, packing and transportation is handled by the employees and labourers of the petitioner-contractor and probably the pieces of inedible offal are mixed at this stage. The respondents, however, submitted that though the entire process is commenced and carried out till end under the supervision of army personnel, but if the petitioner intended to mix pieces of inedible offal it could be possible at the cutting and packing stage without having been noticed by the army personnel. When frozen meat is once unpacked, it could not be kept waiting for arrival of the petitioner or his representatives as the same would have petrified and perforce had to be destroyed. That the petitioner is having contacts with the army for the last so many years and the allegation against the officers with regard to their character and reputation is only with a view of justify his misdeeds and malpractices. That the petitioner is having contacts with the army for the last so many years and the allegation against the officers with regard to their character and reputation is only with a view of justify his misdeeds and malpractices. The case of the petitioner was thoroughly examined and considered before the issuance of removal order and is fully justified in the facts and circumstances of the case. 5. I have heard the arguments advanced by the learned counsel appearing for the respective parties and perused the record meticulously. 6. It is not in dispute that the entire process of cutting, packing and transportation of frozen meat right from the stage of supply of live stocks to the respondents is carried out under the supervision of the officers of respondents. The cutting and packing of frozen meat is also done in presence of Veterinary Doctors and Supply Officers of respondents. It is also not disputed by the respondents that at no point of time, the frozen meat/supply remained abandoned so as to give a chance of mixing of inedible offal into the packets of meat to the petitioner. Even at the time of transportation, there is only a driver in the vehicle which is sealed by the officers of respondents and is accompanied by the escort, which manifestly rules out the possibility of any mixing of inedible offal during this period. It is said so because no other person sits in the vehicle during transportation. For mixing of inedible offal into the packets, it requires a full exercise of opening the packets, resetting after mixing and then again resealing the packets, which cannot be done by a driver himself unless there is somebody else in the vehicle. The entire procedure in detail has been indicated by the petitioner from paras 8 to 18 of the writ petition and not disputed by the respondents in their demurrer. The process is so foolproof that it does not leave any moment/occasion, so as to give an opportunity to the labourers of petitioner-contractor to add/mix the pieces of inedible offal into the packets of frozen meat. The process is so foolproof that it does not leave any moment/occasion, so as to give an opportunity to the labourers of petitioner-contractor to add/mix the pieces of inedible offal into the packets of frozen meat. Assuming that there is a probability of such mixing of inedible offal into the packets during cutting and packing by the labourers, this could very well be detected and pointed out by the Veterinary Doctors at the time of inspection and re-inspection, and particularly in chilling chambers, where the frozen meat is kept at particular temperature prior to its dispatch and the keys remain with the officers of respondents. All these facts, when taken into account in totality, make it abundantly clear that after supply of live stock, no control, practical or physical, remains with the petitioner-contractor during all this process till the last moment. 7. It is further pertinent to point out that the plea taken by the respondents is not specific as to when and where and in what situation the petitioner managed to smuggle the pieces of inedible offal into the packets of frozen meat. The stand of respondents is only on the basis of probabilities and possibilities and on hypothetical basis. For facility of reference, the relevant paras of their reply read as under: "12. That in reply to the averments of para No. 12 of the petition it is respectfully submitted that except the driver nobody else sits in the vehicle. However the vehicle and driver belong to contractor in this case the petitioner. Thereby any malpractice if intended can be done during the journey period to smuggle pieces of inedible offal. 15. That in reply to the averments of para No. 15 of the petition it is respectfully submitted that after chilling and inspection the carcasses are cut in pieces and packed in 5 kilograms packets five such packets are packed in one bag of 25 kilograms. This complete process of cutting and packing is handled by employees and labourers of the contractor (the petitioner). Probably the inedible offals were mixed at this stage by the employee/labourers of the petitioner on his behest. This process of cutting and packing of cutting and packing has been intentionally missed out by the petitioner to mislead the Honble Court. 18. This complete process of cutting and packing is handled by employees and labourers of the contractor (the petitioner). Probably the inedible offals were mixed at this stage by the employee/labourers of the petitioner on his behest. This process of cutting and packing of cutting and packing has been intentionally missed out by the petitioner to mislead the Honble Court. 18. That in reply to averments of para No. 18 of the petition it is respectfully submitted that though the Army personnel are present during the whole process, the petitioner would have found the ways and means to mix the inedible offals at the cutting and packing stage avoiding the sight of the Army personnel. It is clear that if the intention of the petitioner was to mix inedible offals it would have been possible at cutting and packing stage without having been noticed by the Army personnel." 8. The respondents in para-18 of their reply have unambiguously stated that during the whole process the army personnel remain present, but still their stand is that if the petitioner intended to mix the pieces of inedible offal, it was possible at the time of cutting and packing stage in escaping the attention of army personnel. It is further borne out from the aforesaid plea taken in their reply by the respondents that mixing of inedible offal, probably, could have been done during journey period. The manifestly shows that the stand of respondents is neither specific nor definite, but based on probabilities and hypothetical plea. This stand of respondents based on probabilities itself automatically is ruled out when it is admitted and stated in unequivocal terms by the respondents in para-18, referred to above, that the entire process of cutting, packing and transportation right from the beginning till end, is done under the supervision of army personnel. Further the possibility of mixing pieces of inedible offal into the frozen meat packets is ruled out when it is admitted by the respondents that during journey only the driver sits in the truck which is sealed by the army personnel after the meat packets are loaded in it, followed by their escort. Further the possibility of mixing pieces of inedible offal into the frozen meat packets is ruled out when it is admitted by the respondents that during journey only the driver sits in the truck which is sealed by the army personnel after the meat packets are loaded in it, followed by their escort. The possibility of mixing or smuggling of inedible offal into the frozen meat packets is further ruled out when at the destination point the seals of the truck are opened by the officers of respondents and the packets are unloaded from the truck without complaining about the seals or the locks of the truck found broken by such officers. It is also not the case of respondents that at any point of time, either the seals of packets containing the frozen meat or the seals of the truck in which these were loaded or the locks of the truck were found broken at the place of destination by the supply officers. The plea of the respondents evidently appears to be based on figment of imagination, on probabilities and possibilities. Such pleas taken are also vague and void, not specific but evasive. In such circumstances, the Court is left with no option but to accept the correctness of the statements made in the petition. This is further strengthened from the fact that neither the petitioner nor his representatives were ever called at the time frozen meat was unpacked and found to have been mixed with pieces of inedible offal, and is stated to have been destroyed by the respondents on their own. Admittedly, the petitioner has not been given an opportunity to be present at that time and explain what is stated to have happened before taking an adverse decision against him by removing him from the list of approved contractors on the basis of frozen meat having been adulterated with pieces of inedible offal on the opening of packets to which the petitioner was not a party. The petitioner, therefore, in this case, has been evidently condemned unheard and is a clear violation of principle of audi alteram partem as is provided under Order 8 Rule 5 CPC. 9. Right to be heard before any adverse decision is taken against the petitioner, is a civil right which cannot be taken away or even curtailed except in accordance with law. 9. Right to be heard before any adverse decision is taken against the petitioner, is a civil right which cannot be taken away or even curtailed except in accordance with law. Admittedly, before passing the order impugned, no opportunity of being heard was afforded to the petitioner by the respondents. No notice was issued to the petitioner-contractor or his agents and he was not given an opportunity to represent his case in regard to the inedible offal stated to have been found in the frozen meat packets an opening, and passed the order impugned which cannot but be an arbitrary order. As such, the order impugned suffers from the vice of violation of principles of natural justice and is, thus, not sustainable in law, as is held by the Supreme Court in Haji Abdul Shakoor & Co. v. Union of India" (2002) 9 SCC 760. Even on facts and looking to the reply filed by the respondents, it is clearly discernible that the pleas taken are to void, indefinite and vague, based on probabilities, possibilities and chances, being a figment of imagination, unbelievable and unacceptable. This is said so because the whole process of supply is commenced and carried out right from beginning to end under the strict supervision of army personnel of respondents. The process is so foolproof that it rules out any chance of smuggling of inedible offal into the packets of frozen meat, particularly when the supply is not left abandoned at any point of time. The pleas raised by Mr. Nanda, Sr. CGSC, on any factual aspect of the matter, mostly relate to the procedure adopted by the army authorities during all this exercise of cutting, packing and transportation of frozen meat to have not been left, at any time, without supervision of the respondents, cannot be accepted being devoid of legal force and bereft of any substance. It is further neither understandable nor explained and clarified by Mr. It is further neither understandable nor explained and clarified by Mr. Nanda during arguments, as to when the entire process was conducted in the presence of army personnel leaving no chance of interference by third person, why it was not thought to hold an inquiry into the matter, particularly when serious allegations have been levelled against their officers who were present throughout in the exercise and, instead, had taken a lop sided view in issuing a removal letter to the petitioner and attributed the acts of omission and commission to the petitioner firm for vitiating the process of operation of contract. The action of respondents is, therefore, held arbitrary, unreasonable, irrational, in breach of principles of natural justice and, thus, violative of fundamental right of petitioner under Article 11 of the Constitution of India. 10. Taking conspectus of the aforesaid facts and circumstances, I allow the petition, quash and set aside the order impugned bearing No. 30704/A-09/ST5 dated 17.4.2003, whereby the name of petitioner No. 1 has been removed from the approved list of ASC Contractors in the Headquarter Northern Command. 11. In the peculiar circumstances of this case, the parties are left to bear their own costs. Disposed of.