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2008 DIGILAW 241 (CAL)

Truan Kumar Roy v. State of West Benagal

2008-02-27

ANIRUDDHA BOSE

body2008
Judgment :- (1.) IN this writ petition, the petitioner challenges an order passed by the sub-Divisional Controller, Department of Food and Supplies, Balurghat, dakshin Dinajpur dated 20th December, 2007. By this order two licenses held by the petitioner under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 and the West Bengal Kerosene control Order, 1968 have been terminated. (2.) TODAY, along with the writ petition, an application being CAN No. 789 of 2008 has also been moved. In this application, the applicants claim to be ration card holders connected to the petitioners ration shop and it is contended by them that it was at their complaint the composite proceeding was initiated. On the strength of being the original complainants at whose instance the proceeding against the petitioner was initiated, the applicants prayer is fof being added as party respondents to this proceeding. Having heard the learned Counsel appearing for the applicants, I am satisfied that they have right to be heard, in this matter and accordingly I permit them to intervene in this application. (3.) NOW I shall take up the petitioners case on merit. Prior to the issuance of the termination order, a show-cause notice was issued which is Annexure "p3 to the writ petition. The petitioner had replied to the show-cause notice. Opportunity of hearing was given to him and only upon hearing him the order of termination order was passed. Mr. Saha Roy, learned Counsel appearing for the petitioner submitted that both the show-cause notice and the order of termination ensuing therefrom are not sustainable as in a single proceeding, the petitioners license being granted under the two separate control Orders cannot be terminated. The second ground of challenge is that in the show-cause notice, there was no charge against the petitioner alleging violatlon of the provisions of kerosene control order and thus so far as the termination of the petitioners license under the Kerosene Control Order is concerned, the petitioner was deprived of the opportunity of being informed of the substance of the charges against him which he could have dealt with in his reply. Mr. Mr. Saha Roy has relied on two unreported decisions of this Court in the, case of Mashiar Rahman Biswas vs. State of West Bengal and Ors., in W.P. No. 20414 (W) of 2007, delivered on 20th September, 2007 and in the case of Kalyani Prosad Pandey vs. State of West Bengal and Ors. , in W.P. No. 8534 (W) of 1998, delivered on 9th June, 1998. Both these authorities have been cited in support of the proposition that a composite notice of show-cause alleging violation of the provisions of two Control Orders is not sustainable. (4.) MR. Chakraborty, learned Counsel appearing for the respondent authorities contested the writ petition by filing an affidavit-in-opposition. The main ground on which he resists this writ petition is that the petitioner had himself participated in the proceeding in pursuance of the show-cause notice before the authority without taking any objection as regards its maintainability and as such he could not at this stage be allowed to raise this question. Mr. Chakraborty has further submitted that the petitioner had practically admitted his guilt and the reply of the petitioner to the show-cause notice have been annexed to the affidavit-in-opposition marked as annexure "r1". Mr. Chakrabortys case is that this reply was deliberately not disclosed in the writ petition and this fact of admission constitutes suppression of material fact on which ground alone the writ petition should be dismissed. (5.) HE has also sought to rebut the allegation of the petitioner that he was deprived of any opportunity of defending the charge against him as regards violation of the provision of West Bengal Kerosene Control Order. In the show-cause notice itself, it has been specified that there was a shortage of kerosene oil from the stock to the extent of 387.250 Lts. , and thus the petitioner had the opportunity to rebut such allegation. (6.) I shall take up the point of suppression of material fact first. In the writ petition admittedly the reply to the show-cause notice has not been annexed. However in paragraph 8 of the writ petition the petitioner has pleaded that he had submitted his reply denying almost all the allegations raised against him. Thus the factum of filing of reply was pleaded in the writ petition. In the writ petition admittedly the reply to the show-cause notice has not been annexed. However in paragraph 8 of the writ petition the petitioner has pleaded that he had submitted his reply denying almost all the allegations raised against him. Thus the factum of filing of reply was pleaded in the writ petition. Now a question arises whether the non-disclosure of the reply in the writ petition by annexing it, or reproducing the content of the reply in detail in the pleading constitutes suppression of material fact or not. (7.) IN my opinion, such suppression would have constituted suppression of material fact so as to disentitle the writ petitioner from getting relief if any ex parte ad interim order was obtained by the petitioner, since in that event the court would not have the opportunity to look into the nature of the reply while considering the petitioners prayer for ad interim order. In the present writ petition, however, the matter was moved upon notice and no interim order was granted but direction for filing of affidavits was given at the initial stage. The respondents thus had full opportunity of replying to the allegations made in the writ petition and bring to the notice of this Court any deficiency or shortcoming therein at the time of final hearing so that the Court had been apprised of the actual facts before the matter was finally adjudicated. Since the petitioner in this writ petition did not take or get any advantage by not disclosing the copy of the reply in the writ petition and the fact of filing of reply has been pleaded, I do not think non-disclosure of the reply of the petitioner to the show-cause notice to be of such material significance which would non-suit the petitioner altogether on the ground of suppression of material fact. Such non-disclosure might have been a ground for vacating an interim order in an application akin to the one contemplated in Order 39 rule 4 of the Code of Civil Procedure. Since this matter is being contested on filing of affidavits, I am of the opinion that the writ petition cannot be rejected or dismissed on the ground of suppression of material facts. Since this matter is being contested on filing of affidavits, I am of the opinion that the writ petition cannot be rejected or dismissed on the ground of suppression of material facts. (8.) NOW, I shall examine the issue as to whether by participating in the proceeding before the Sub-divisional Controller, petitioner can be said to have waived his right to question the validity of the notice and the ensuing proceeding on the ground that such composite notices render the proceeding invalid. There are two authorities of this Court on this point. It has been held in these decisions that a composite show-cause notice cannot be issued but in both these cases what were challenged were the orders of suspension and not the final order of termination. This distinction has been brought to my notice by Mr. Chakraborty. I am of the opinion however that his participation in a proceeding in which charge is not made out under a particular Control Order cannot deprive the notice from contesting the validity of the proceeding at a later stage in the show-cause notice, though it has been stated that there was shortage detected in respect of kerosene oil, there is no allegation or indication the petitioner had violated any provisions of the Control Order of 1968. Thus opportunity of reply given to the petitioner was confined to the charges brought against him only under the Control Order of 2003. In the order of termination however, his license of kerosene issued under the Control Order of 1968 has been terminated. Thus the license of the petitioner under a particular Control Order was terminated though no specific allegation was made against the petitioner of violation of any of the provision of such Control Order at the show-cause stage. (9.) IT is true that participating in a proceeding in some cases without raising an objection about its maintainability can result in forfeiture of the right of such participant to question the maintainability of such proceeding at a later stage. (10.) BUT in the instant case, the error on the part of the authorities runs from deep into the proceeding. Right to reply to a charge is now treated as a part of the Fundamental Right enshrined in Article 14 of the Constitution of india and it is not merely statutory right. (10.) BUT in the instant case, the error on the part of the authorities runs from deep into the proceeding. Right to reply to a charge is now treated as a part of the Fundamental Right enshrined in Article 14 of the Constitution of india and it is not merely statutory right. Since in this writ petition, the petitioner was not afforded an opportunity to reply to any charge made against him under the Control Order of 1968, in my opinion, the order terminating his license under the said Order stands vitiated for violation of the principles of natural justice. This violation is of such a nature that it does not get cured by the fact of such a nature that it does not get cured by the fact of mere participating by the petitioner in the proceeding. Mr. Chakraborty has also submitted that the petitioner had admitted to have been committed irregularity which was contained in the show-cause notice. But the admission if any is in respect of the charges brought against him under 2003 Order as in the show-cause notice, there is no mention of any violation of the provisions of the control Order of 1968. (11.) WHAT would be the effect under such circumstances about the proceeding brought under the 2003 order? In both these decisions cited by mr. Saha Roy it was specifically held that composite show-cause notice cannot be issued and the notice to show-cause and order of suspension were quashed. I have also heard the learned Counsel appearing for the applicants who have supported the stand of the authorities. (12.) IN view of there being two decisions of benches of co-ordinate strength on this point, I do not make a departure from the established position of law this point and I quash the impugned order of cancellation and/or termination. The respondents shall however be at liberty to issue a show-cause notice afresh so far as the West Bengal Kerosene Control Order, 1968 is concerned. (13.) I do not intend to quash the notice of show-cause. So far as the impugned show-cause notice is concerned since the notice does not specify any violation of the Kerosene Control Order. The respondents shall however be at liberty to issue a show-cause notice afresh so far as the West Bengal Kerosene Control Order, 1968 is concerned. (13.) I do not intend to quash the notice of show-cause. So far as the impugned show-cause notice is concerned since the notice does not specify any violation of the Kerosene Control Order. That notice shall be treated as a notice under the 2003 Order but de novo hearing is necessary in view of the fact that at the time of hearing, the hearing officer apparently considered breach of both these control orders which is reflected in the final order of termination. In such hearing the petitioner shall be entitled to give any reply and the entire exercise may be completed within a period of eight weeks from the date of communication of this order. The impugned order of suspension also cannot be retained as in this order of suspension breach of both the control orders were considered. In the show-cause notice or demand for explanation which is mandatory in the event the order of suspension is issued under the 2003 Control Order, no charge of violation of 1968 order has been alleged. No hearing has also been given to the petitioner on the suspension order as contemplated in paragraph 9 of the 1968 order. The suspension order accordingly stands quashed. However till appropriate order is passed, if any, the petitioners allotment of the essential commodity including kerosene oil shall stand restored. (14.) WITH this direction, the instant writ petition shall stand disposed of. (15.) LET urgent xerox certified copy of this order be supplied to the parties, if applied for, on compliance of usual formalities. Appeal disposed of.