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J&K High Court · body

2005 DIGILAW 272 (JK)

Babu Din v. State Of J. &K.

2005-10-03

PERMOD KOHLI

body2005
1. Petitioners herein are Food Inspectors, working in Jammu Municipal Corporation having been appointed from time to time in accordance with provisions of Food Adulteration Act (hereinafter referred to as Act�). They are entrusted with the job of frequent inspections and to perform certain statutory duties as prescribed under the aforesaid Act. Petitioners have questioned the illegality and validity of the order No: MJ/Estt/1718-20 dated 19.6.2004 issued by Executive Officer of Municipal Corporation, Jammu and the corrigendum issued thereto under No: MJ/Estt/8/83-87 dated 23.6.2004 whereby it has been ordered that inspection of slaughter houses, checking of milk and milk products as well meat shall be looked after by the Municipal Veterinary Officer and Food Inspectors/Sanitary Inspectors to the extent they are involved with the function for effective inspection shall work under the supervision and control of Municipal Veterinary Officer, Municipal Corporation Jammu. It is alleged in the petition that aforesaid two orders amount to interference with the statutory functions of the petitioners. It is further alleged that under the provisions of Act, Veterinary Officer has no role to perform nor he has any authority to inspect the food products. It is also stated that the Veterinary Officer is not qualified to perform duty under the Food Adulteration Act. According to the petitioners, Veterinary Officer also does not have a controlling authority over the petitioners who are required to report directly to Local Health Authority as constituted vide SRO 129 of 1993 dated 16.7.1993. Further allegation of the petitioners is that Municipal Commissioner does not have any power or authority under the provision of Food Adulteration Act to issue such order nor even State Govt. has any such authority under law. Petitioners accordingly not only seek quashment of impugned order but also seek writ of prohibition restraining the respondents to encroach upon or interfere with the performance of statutory duties by the petitioners independently without any pressure or illegal supervision. 2. Veterinary Officer, who has been authorized to supervise the functioning of the petitioners, has also been impleaded as party respondent-4 in the writ petition. Official as well as private respondents have filed their separate objections to the writ petition. Claim of the petitioners of interference in their statutory duties has been refuted. It is stated that impugned orders are not aimed at interfering in the statutory duties being performed by the petitioners under the Food Adulteration Act. Official as well as private respondents have filed their separate objections to the writ petition. Claim of the petitioners of interference in their statutory duties has been refuted. It is stated that impugned orders are not aimed at interfering in the statutory duties being performed by the petitioners under the Food Adulteration Act. It is further stated that under the provision of J&K Municipal Corporation Act, the over all control and supervision lie with the Commissioner, Jammu Municipal Corporation. Veterinary Officer is competent to carry inspection of slaughter houses and dairy etc being possessed of B.V.Sc & A.H (Bachelor of Veterinary Science and Animal Husbandry). Such power is available with Veterinary Doctor under Grading and Marketing Rules 1991 framed under the Agricultural Produce (Grading and Marketing) Act 1937. It is accordingly urged on behalf of respondents that with a view to provide quality control and inspection, Veterinary Officer has been authorized to supervise the inspection being conducted by the petitioners, who are officers subordinate to Municipal Veterinary Officer. It is also case of the respondents that under the provision of Prevention of Cruelty to Animals (Slaughter House) Act 1960, it is the Veterinary Doctor, who issue certificate of fitness before slaughtering the animals and under the prevention of Food Adulteration Rules 1955, veterinary science is one of the qualifications for appointing a Food Inspector. It is under these circumstances, Govt. has posted Municipal Veterinary Officers in both Municipal Corporations of Jammu and Srinagar and vide subsequent order dated 14.6.2004, it is directed that service of Municipal Veterinary Officer be utilized for the following purposes: (a) Management of Municipal Cattle Ponds. (b) Licensing of Pet Dogs and Controlling the menace of street Dogs. (c) Checking slaughter of animals to ensure supply of good quality of meat. (d) Checking quality of milk supplied through the whole sale or retail outlet. 3. It is further stated on behalf of respondents that under the various provisions of Municipal Corporation Act, Municipal Commissioner has power and authority to supervise and control the functioning of Food Inspectors in Municipal area and he has also power to delegate his functions. Accordingly, impugned order has been passed without interfering with the powers and functioning of the petitioners. 4. With a view to appreciate the contentions of respective parties, it is relevant to refer to certain provisions of Food Adulteration Act. Accordingly, impugned order has been passed without interfering with the powers and functioning of the petitioners. 4. With a view to appreciate the contentions of respective parties, it is relevant to refer to certain provisions of Food Adulteration Act. 9-Food Inspectors:- (1) The Central Government or the State Government may by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be food inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be: Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a food inspector under this section. (2) Every food inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 to 1860) and shall be officially subordinate to such authority as the Government appointing him, may specify in this behalf. 10. Powers of food inspectors:- (1) A food inspector shall have power:- (a) to take samples of any article of food from- (i) any person selling such article, (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; (iii) A consignee after delivery of any such article to him: and (b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken: (c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. 23. Power of the Central Government to make rules:- (1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act. 23. Power of the Central Government to make rules:- (1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act. Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules. In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- x x x x x x x x x x x x x x x x x x (e) defining the qualifications, powers and duties of food inspectors and public analyst: 24. Power of the State Government to make rules: (1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of Section 23. (2) In particular and without prejudice to the generality of the foregoing power, such rules may:- (a) define the powers and duties of the Food (Health) Authority, local authority and Local (Health) Authority under this Act. Rule: 8. (2) In particular and without prejudice to the generality of the foregoing power, such rules may:- (a) define the powers and duties of the Food (Health) Authority, local authority and Local (Health) Authority under this Act. Rule: 8. Qualifications for food inspector:- A person shall not be qualified for appointment as food inspector unless he_ (a) is a medical officer incharge of health administration of a local area; or (b) is a graduate in medicine and has received at least one month™s training in food inspection and sampling work approved for the purpose by the Central Government or a State Government; or (c) is a graduate in Science with Chemistry as one of the subjects or is a graduate in Agriculture or Public Health or Pharmacy or in Veterinary Science or a graduate in Food Technology or Dairy Technology or is a diploma holder in Food Technology or Dairy Technology from a University or Institution established in India by law or has equivalent qualifications recognized and notified by the Central Government for the purpose and has received three months satisfactory training in food inspection and sampling work under a Food (Health) Authority or in an institution approved for the purpose by the Central Government. 9. Duties of Food inspector- It shall be the duty of the food inspector- (a) to inspect as frequently as may be prescribed by the Food (Health) Authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food within the area assigned to him; x x x x x x x x x x x x x x x x x x x x x x x ( c) to procure and sent for analysis, if necessary, samples of any articles of food which he has reason to suspect are being manufactured, stocked or sold or exhibited for sale in contravention of the provisions of the Act or rules there under: x x x x x x x x x x x x x x x x x x x x x x x (e) to maintain a record of all inspections made and action taken by him in the performance of his duties, including the taking of samples and the seizure of stocks and to submit copies of such record to the health officer or the Food (Health) Authority as directed in this behalf. (f) to make such inquires and inspection as may be necessary to detect the manufacture, storage or sale of article of food in contravention of the Act or rules framed there under: 5. Perusal of aforesaid sections of Act and Rules establish beyond any doubt that Food Inspectors are not only statutory authority appointed under the statute but also require to perform statutory functions enjoined upon them under section 10. Food Inspectors are further required to function under Local Health Authority� as notified by State Government. Vide SRO 129 dated 16.7.1993. State Government in exercise of powers under clause (VIII-a) of Section 2 of the prevention of Food Adulteration Act 1954, can appoint an officer as Local (Health) Authority to be incharge of Health Administration for the local areas specified. Based upon the various provisions of the Food Adulteration Act and constitution of Local Health Authority, it is submitted on behalf of the petitioners that Food Inspectors are required to perform their functions/duties independently without any interference from any person except they are required to report to Local Health Authority within whose jurisdiction/local area they function. Municipal Veterinary Officer being none of the authorities prescribed under the Food Adulteration Act, petitioners cannot be subjected to his control and supervision under law. While making reference to the provisions of the Food Adulteration Act, it is stated that it is only Central Government which has authority to frame rules defining powers and duties of the food inspectors and State Govt. does not have any power to issue such order under section 24 of the Act. It is also submitted that Central Government has not framed any further rules except referred to above defining powers and duties of the Food Inspectors nor respondent-4 has been appointed as their controlling authority, therefore, impugned order and corrigendum thereto are liable to be quashed. 6. Mr. Kapoor has referred to judgment of Apex Court in case of AIR 1977 Supreme Court 527. Paras-7 and 8 of the judgment are relevant which read as under: 7 Thus an analysis of these provisions would plainly reveal that the Food Inspector does not derive his power from the Rules regulating licence of a trader but the fountain of his authority flows from the statutory provisions itself. Paras-7 and 8 of the judgment are relevant which read as under: 7 Thus an analysis of these provisions would plainly reveal that the Food Inspector does not derive his power from the Rules regulating licence of a trader but the fountain of his authority flows from the statutory provisions itself. There is no provision in the Rules which in any way prevents or interferes with the discharge of the duties of a Food Inspector. The power to inspect and check is a plenary power which has been conferred on the Food Inspector by the statute itself and no rule made by the Government can ever interfere with this power. In these circumstances, it is difficult to accede to the contention of Mr. Patel that unless the members of the plaintiff-association are licensed as manufacturers also, it will not be possible for the Food Inspector to inspect and check the premises where the articles are prepared. The Act is a social piece of legislation meant to control and curb adulteration of articles of food and being in the interest of public health it has to be liberally construed and no limitation can be inferred on the powers of the Food Inspector whose primary duty is to see that the adulterated articles are neither manufactured nor stored nor sold. For these reasons, therefore, the main contention of Mr. Patel on this score is over ruled. 8. The contention of counsel for the respondent regarding powers of the Food Inspector may be tested from another angle of vision on the touch stone of practical reality. Suppose a particular State Government does not choose to frame any Rules at all under the provisions of the parent Act ( the Prevention of Food Adulteration Act), can it be argued with any show of force that in such cases the Food Inspector would be come absolutely powerless and wholly ineffective? The answer must be in the negative because it is manifest that the duties and functions of the Food Inspector spring from the parent statute and are not in any way correlated to the additional duties provided for in the Rules which may be framed by the State Government. Thus even from this point of view, the argument put forward by the respondent fails. 7. Thus even from this point of view, the argument put forward by the respondent fails. 7. Based upon the observations of the Apex Court, it is argued on behalf of the petitioners that no authority whatsoever can interfere with the statutory functions to be performed by the Food Inspectors under Food Adulteration Act and thus impugned order which tend to interference with the statutory functions of the petitioners is not sustainable. 8. Mr. Nanda learned counsel appearing on behalf of Jammu Municipal Corporation as referred to Rule 9(a) of the Prevention of Food Adulteration Rules 1955 which interalia provide that Food Inspector is required to inspect as frequently as may be prescribed by the Food (Health) Authority or the local authority all establishments licensed for the manufacture, storage or sale of an article of food within the area assigned to him. According to him Local Authority is Municipal Corporation and Food Inspectors are under its control. He has further referred to various provisions of J&K Municipal Corporation Act 2000. Section 41 deals with general powers of municipal administration of the municipal area of the Corporation. Under section 42 (1) (b), the Government by notification endow the Corporation with such powers and authority as may be necessary from time to time to enable it to function as an institution of Local Self Government, subject to the performance of function and implementation of schemes which may be entrusted to it including the functions in respect of the public health, sanitation, conservancy and solid waste management. Some of the relevant functions of the Corporation have been specified under section 43 of the Act. Similarly Municipal Corporation has also discretionary functions as prescribed under section 44 and relevant provisions are contained in clauses (n) and (v). Section 50 deal with the functions of the Commissioner appointed under the Municipal Corporation Act. Relevant extract of this section is as under: 50. Functions of the Commissioner: Save as otherwise provided in this Act and subject to supervision and control of the Corporation and its Mayor the executive power for the purpose of carrying out the provisions of this Act, shall vest in the Commissioner, who shall also: (a) exercise all the powers and discharge all the duties specifically conferred or imposed upon him by this Act or by any other law for the time being in force. (b) Prescribe the duties of and exercise supervision and control over the acts and proceedings of all Corporation officers and other Corporation employees and subject to any rules that may be made in this behalf dispose of all questions relating to the service of the said officers and other employees and their pay, privileges allowances and other conditions of service. 9. Section 322 vest the Commissioner with power to grant licence for carrying on trade of a butcher, fishmonger, poulterer or importer of flesh intended for human food and this power is also contained in sub section (2) which reads as under: (2) The Commissioner may, by order and subject to such conditions as to supervision and inspection as he thinks fit to impose, grant a licence or may by order, refuse for reason to be recorded, to grant the same. 10. Section 331 of the Municipal Corporation Act further empower the Commissioner to inspect place where unlawful slaughter of animals is suspected. Chapter-XXIII deal with control of the Government . Under section 400, the Government has power to depute any officer for inspection and under section 401, Government has power to give direction. Sections 400 and 401 are noticed hereunder: 400. Inspections- The Government may depute any officer to inspect or examine any municipal department or office or any service or work undertaken by the Corporation or any of the municipal authorities or any property belonging to the Corporation and to report thereon and the Corporation and every Corporation authority and all Corporation officers and other Corporation employees shall be bound to afford the officer so deputed access at all reasonable times to the premises and properties of the Corporation and to all records, accounts and other documents the inspection of which he may consider necessary to enable him to discharge his duties. 401. Power to give directions- (1) If whether on receipt of any information or report obtained under section 399 or section 400 or otherwise, the Government is of the opinion- (a) that any duty imposed on the Corporation or any of its authority by or under this Act has not been performed or has been performed in an imperfect, insufficient or unsuitable manner: or (b) that adequate financial provision has not been made for the performance of any such duty. the Government may direct the Corporation or the Commissioner within such period as it thinks fit, to make arrangements to its satisfaction for the proper performance of duty or as the case may be to make financial provisions to its satisfaction for the performance of the duty and the Corporation or the Commissioner concerned shall comply with such directions: Provided that unless in the opinion of the Government the immediate execution of order is necessary, it shall, before making any directions under this section, give the Corporation or the Commissioner an opportunity of showing cause why such direction should not be made.� 11. Section 405 provide for delegation of power by the Government. This section reads: 405. Delegation-(1) The Government may, by notification, delegate all or any of its powers under this Act, except the power to make rules, to any officer subject to such restrictions and conditions as may be specified in the notification. (2) The Commissioner may by order direct that any power conferred or any duty imposed on him by or under this Act, shall in such circumstances and under such conditions, if any, as may be specified in the order, be exercised and performed also by any Corporation officer or other Corporation employee specified in the order. 12. Placing reliance on the provisions of Municipal Corporation Act, it is urged on behalf of the respondents that it is the Commissioner, who is required not only to control functions of the Food Inspectors within Municipal Corporation Area but also to supervise sale and use of dairy. With a view to make effective supervision under the provisions Municipal Corporation Act, Government has deputed respondent-4 to supervise the inspection of sale and use of dairy and milk products etc. 13. Only question that require examination in the present petition is whether impugned order and the corrigendum thereof amount to interference in the performance of statutory duties and functions of the Food Inspectors (petitioners) and whether the deputation of respondent-4 to supervise inspection of slaughter houses, milk and milk products is prohibited under the provisions of Food Adulteration Act and rules made there under. It is undisputed that Food Inspectors are statutory authorities empowered under the Food Adulteration Act to discharge their statutory duties including inspection of premises where food products are stored, sold, kept and also take samples and forward the same for analysis. It is undisputed that Food Inspectors are statutory authorities empowered under the Food Adulteration Act to discharge their statutory duties including inspection of premises where food products are stored, sold, kept and also take samples and forward the same for analysis. All these functions are aimed at preventing food adulteration. Food Inspectors are required to perform their duties under and over all control of the Local Health Authority which is Corporation in the present case as admittedly they are under the administrative control of Jammu Municipal Corporation. This fact is admitted by the petitioners in para-2 of the petition. Deputation of respondent-4 is intended to supervise inspection of meat, milk products and premises where these products are stored and sold etc. It cannot be disputed by the petitioners that Veterinary Officer is better equipped and possessed of scientific knowledge in respect to meat and milk products. Impugned order do not in any manner provide that the petitioners shall not perform their statutory duties unless so directed or ordered by respondent-4. Impugned order only provide for supervision i.e the administrative control over the Food Inspectors/Sanitary Inspectors by respondent-4 who is also an officer superior in rank than petitioners. Even if the expression used in impugned order is stretched to any extent, it only require the petitioners to assist respondent-4 in carrying different inspections. Neither respondent-4 has been empowered to discharge the functions of Food Inspectors/Sanitary Inspectors nor he has been entrusted with statutory duty/function as prescribed under the provisions of Food Adulteration Act. Whenever inspection is to be carried out by the Food Inspectors/ Sanitary Inspectors, it should be under the supervision of respondent-4 or by the respondent-4 with the assistance of Food Inspectors. If sample is required to be taken, this duty can only be performed by the petitioners and not by respondent-4 although he can exercise administrative control and not statutory control or authority over the petitioners. Under the provisions of Municipal Corporation Act, Commissioner has to exercise administrative control over all his employees including the petitioners and the Commissioner has power to delegate his authority to any officer of the Corporation in terms of section 405 (2) of the Act. Impugned order amounts to delegation of authority by the Commissioner to respondent-4 to exercise administrative control over the petitioners. None of the provisions of Municipal Corporation Act are in conflict with provisions of Food Adulteration Act. Impugned order amounts to delegation of authority by the Commissioner to respondent-4 to exercise administrative control over the petitioners. None of the provisions of Municipal Corporation Act are in conflict with provisions of Food Adulteration Act. On the one hand petitioners are required to perform their statutory duties under the provisions of Food Adulteration Act, on the other hand they have to function under the administrative control of the respondent-4 as the delegatee of the Commissioner in accordance with the provisions of J&K Municipal Corporation Act. Examining from all the aspects it cannot be said that impugned order amount to interference in statutory functions and duties of the petitioners though they have to act under administrative control of respondent-4 while carrying out their duties and functions as required under Food Adulteration Act. In view of the various provisions of Food Adulteration Act and Municipal Corporation Act referred to above, I am of the considered opinion that impugned order do not in any manner either interfere with the statutory functions of the petitioners nor respondent-4 has been vested with any power to act as statutory controlling authority over the petitioners under the provisions of Food Adulteration Act. There is no merit in this petition, same is accordingly dismissed.