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2009 DIGILAW 952 (CAL)

Biswambhar Basu v. STATE OF WEST BENGAL

2009-12-24

Aniruddha Bose

body2009
JUDGMENT Aniruddha Bose, J. 1. THE petitioner, whose licence for operating a fair price shop has been terminated, is before this Court seeking quashing of the order of termination. This is the second writ petition in connection with the said shop and the dispute out of which the present proceeding arises dates back to 14th June, 2007. On that date a show cause notice was issued to the petitioner, requiring him to explain as to why proceeding shall not be drawn against him for violation of certain provisions of the West Bengal Public Distribution System (Maintenance and Control) Order, 2003.1 shall refer to this Control Order as the "2003 Order" in the later part of this judgment. THE show-cause notice was issued by the Director of Rationing and it reads: "It reveals from the report of Enquiring Officers, Sri Jamini Baidya, DDR and others, that on their visit to his shop on (i) 29.5.07 at 4-30 p.m. they found the shop- closed during specified hours: (ii) on 01.6.07 at 09.55 a.m. they could not obtain books of accounts viz. A.R. Part-I, in spite of their repeated demand. Thus, he has violated the para 18(iii) and (iv)(e) and conditions of 5 and 9 of the West Bengal Urban PDS (Maintenance Control) Order, 2003. He is therefore, asked to showcause within 7 (seven) days from the date of receipt of this letter why proceedings shall not be drawn against him under para 26 of the above said Control Order. This is urgent. Director of Rationing, West Bengal. 2. THE petitioner had responded to the notice denying the allegations. In his reply, the petitioner took a specific stand that the AR Part-I Register was not available because the same was taken by the petitioner to the headquarters to produce the same before one Jamini Kumar Baidya, Deputy Director of Rationing as per his instruction conveyed to the petitioner over telephone. THE authority of the first instance under the 2003 Order found the reply of the petitioner inadequate, and in exercise of power under 2003 Order suspended the licence of the petitioner until further order. This order was issued on 5th July, 2007. The writ petitioner appealed before the Principal Secretary and Commissioner of Food and the Appellate Authority on 9th July, 2007 against the order of suspension. The petitioner, however, was given an opportunity of hearing by the Director of Rationing. This order was issued on 5th July, 2007. The writ petitioner appealed before the Principal Secretary and Commissioner of Food and the Appellate Authority on 9th July, 2007 against the order of suspension. The petitioner, however, was given an opportunity of hearing by the Director of Rationing. On 16th July, 2007, the Director of Rationing passed an order directing continuation of the order of suspension. The petitioner approached the Director General of Food and Principal Secretary, Food and Supplies Department with prayer to set aside the order of the Director of Rationing passed on 12th July, 2007, or for review of the said order. This application was captioned as "Appeal". The Director General, Food and the Principal Secretary, Food and Supplies Department, however, declined to interfere in the matter at that stage. In his order passed on 19th July, 2007, he observed: "considering all the above aspects, I am of the opinion that unless the case is concluded and final order is passed by the competent authority, it will be prematured to take up the matter by the appellate authority. Let the final disposal of the case be made by the competent authority at an early date. Thereafter, the appellant if not satisfied, is at liberty to move the appellate authority for hearing...." (quoted vertabim). 3. IT appears from pleadings that the Director of Rationing thereafter had examined the records, and photocopy of the Register A.R-I-Part A and the statement of Jamini Kumar Baidya dated 11th July, 2007 were supplied to the petitioner. However, so far as the proceeding against the petitioner was concerned, no progress was made. On 31st August, 2007, the petitioner again appealed before the Director General of Food for taking final decision in the appeal preferred by the petitioner. Thereafter, a fresh show-cause notice was issued on 25th September, 2007 against the petitioner requiring him to show cause as to why his licence shall not be cancelled alleging various irregularities in operation of his outlet. This order in substance contained allegations of irregularities in particular in the AR Part-I register. The petitioner replied to the said notice denying such allegations, and he was given opportunity of hearing on 1st November, 2007. By an order issued on 5th November, 2007, the Director of Rationing cancelled the licence of the petitioner. The petitioner had preferred an appeal against the said order before the Commissioner, Food. The petitioner replied to the said notice denying such allegations, and he was given opportunity of hearing on 1st November, 2007. By an order issued on 5th November, 2007, the Director of Rationing cancelled the licence of the petitioner. The petitioner had preferred an appeal against the said order before the Commissioner, Food. By an order dated 30th April, 2008, the said authority confirmed the order of termination of the petitioner's licence. 4. A writ petition (W.P. No. 1004 of 2008) was filed challenging the entire proceeding which culminated in passing of the final order by the petitioner before this Court. This writ petition was allowed by this Court on 22nd July, 2008 with the following direction: "The petitioner herein has challenged an order of termination of his licence for operating a fair price shop granted under the provisions of the West Bengal Urban Public Distribution System (Maintenance and Control) Order, 2003. Initially, a show-cause notice was issued against the petitioner alleging certain irregularities in the running of his shop and his licence was suspended. Thereafter, the matter was examined by the adjudicating authority and the said authority passed the order of termination. I do not think there is any necessity of discussing the entire order of the adjudicating authority as Mr. Saha Roy, learned Advocate appearing for the petitioner, has confined his submission in assailing the impugned order of termination on the ground that the material on which reliance was placed by the adjudicating authority was not made available to him. In paragraph 24 of the writ petition, it has been specifically pleaded that despite request, copy of the report submitted by the enquiring personnel has not been supplied to the petitioner and the enquiring personnel was not called for to attend the hearing, providing opportunity to the petitioner to cross-examine them. In spite of directions, no affidavit-in-opposition has been filed by the respondents and as such the statement of the petitioner goes untraversed. The report, non-availability of which has been specifically argued by the petitioner, has been made by Jamini Baidya, Deputy Director of Rationing, which appears to have been considered by the licensing authority as also the appellate authority. I am satisfied that in the absence of making available such report, the proceeding would stand vitiated for non-compliance of the principle of natural justice. Accordingly, the order of the appellate authority shall stand quashed. I am satisfied that in the absence of making available such report, the proceeding would stand vitiated for non-compliance of the principle of natural justice. Accordingly, the order of the appellate authority shall stand quashed. The appellate authority is directed to re-hear the appeal upon making available to the petitioner, within two weeks from the date of communication of this order, copy of the report, on which reliance was placed by the adjudicatory fora. The appeal should be heard and disposed of within a period of three weeks from the date of making available the report upon giving the petitioner opportunity of hearing by the concerned appellate authority. The writ petition is allowed in the above terms. There shall be no order as to costs." The grievance of the petitioner is that in spite of direction of this Court no such report has been made available to him. The main complain of the petitioner since the dispute had originated is that the report of the Enquiry Officer, being Jamini Baidya and Ors. as recorded in the notice to show cause dated 14th June, 2007 was not made available to him. In the writ petition, as Annexure 'P3', a report dated 1st June, 2007 has been annexed, which has been signed by one Tulsidas Mukhopadhyay and another individual whose name has not been legibly written. They have described themselves as inspector and Sub-inspector of the concerned department. Subsequent to the passing of the order of this Court in W.P. No. 1004 of 2008, a letter was written to the petitioner by the Deputy Secretary to the Government of West Bengal, Food and Supplies Department, informing him of the date of hearing of appeal on 16th September, 2008. To this letter was annexed a copy of a letter of J. K. Baidya (Jamini Kumar Baidya). This letter appears to have been issued on 11th July, 2007, and seeks to bring to the notice of the addressee thereof, being the Director of Rationing about certain discrepancies or irregularities in issuance of ration cards from the shop of the petitioner. 5. THE arguments advanced on behalf of the petitioner is pegged on the point that the entire proceeding has been initiated and continued on the basis of a report, purported to have been authored by said Jamini Baidya, but this report in reality never existed. 5. THE arguments advanced on behalf of the petitioner is pegged on the point that the entire proceeding has been initiated and continued on the basis of a report, purported to have been authored by said Jamini Baidya, but this report in reality never existed. In response to the letter of the petitioner seeking the said report, the communication addressed to the Director of Rationing by J. K. Baidya dated 11th July, 2007 has been sent to the petitioner. But this report was obviously prepared subsequent to the relevant date, that is 1st June, 2007. 6. ON behalf of the respondents, the writ petition has been contested by filing an affidavit, affirmed by one Swasti Ghosh, Rationing Officer, Bidhannagar, being the respondent No. 7 in the writ petition. Objection has been mainly taken in this affidavit on the maintainability of the writ petition. It has been urged that the appeal is pending before the appropriate authority constituted under the 2003 Order and it would be open to the petitioner to make out his case before such authority. It has been specifically argued that successive writ petitions on the same point ought not to be entertained. ON this point the decision of the Hon'ble Supreme Court in the case of Udyami Evam Khadi Gramodyog Welfare Sanstha vs. State of U.P., reported in 2008(1) SCC 560 , has been relied upon. It has further been submitted that the interim direction of this Court to the effect that the vacancy should not be filled up is causing prejudice to public interest and on this point the case of Delhi Development Authority vs. Sleeper Construction (P) Ltd. and Ors., reported in 1996(4) SCC 622 , has been cited. Learned Counsel for the respondents has pressed for dismissal of this writ petition on the ground that the statute itself provides efficacious remedy to the petitioner and the case relied upon on this point Assistant Collector, Central Excise vs. Jainson Hosiery Industries, reported in 1979(4) SCC 22 . On behalf of the petitioner, in reply it has been argued that the petitioner was not given the report in compliance with the direction of this Court contained in the order passed on 22nd July, 2008. On behalf of the petitioner, in reply it has been argued that the petitioner was not given the report in compliance with the direction of this Court contained in the order passed on 22nd July, 2008. Relying on the decision of M. M. Pathak vs. Union of India, reported in AIR 1978 SC 803 , it has been argued that the decision of this Court in W. P. No. 1004 of 2008 has acquired finality and crystalised into a right of the petitioner to receive the report. Thus this is not a case where the second writ petition was filed for a relief which was covered by an earlier proceeding, which stood concluded. Relying on the decision of J. S. Parihar vs. Ganpath Duggar and Ors., reported in 1996(6) SCC 291 , it has been submitted that the failure to furnish the report in pursuance of the decision of this Court constituted a fresh cause of action. On the same point, a decision of an Hon'ble Division Bench of this Court in the case of Union of India vs. Sayed Mirza, reported in 2007(2) CLJ (Cal) 156, has been referred to. 7. THE other point argued in course of hearing on behalf of the respondents is suppression of material facts by the writ petitioner. THE material fact, which the petitioner is alleged to have suppressed in the writ petition is that the petitioner had made an appeal before the Principal Secretary and Commissioner, Food of the concerned department in which he had confessed is guilt and prayed for mercy. A copy of the said appeal, made on 7th November, 2007 was produced before this Court by the learned Counsel for the respondents. But this fact was not brought on record while filing the writ petition. Further case of the respondents is that in the appeal, the petitioner never raised the allegation of non-supply of the enquiry report. 8. I shall first examine the arguments advanced on behalf of the respondents that two successive writ petitions on the same point cannot be maintained, in the context of the dispute out of which the present proceeding arises. In the first writ petition, the only point argued before this Court was that the copy of the enquiry report was not made available to the writ petitioner. In the first writ petition, the only point argued before this Court was that the copy of the enquiry report was not made available to the writ petitioner. No affidavit was filed in the said writ petition in spite of directions of this Court in that regard. In the order of this Court passed on 22nd July, 2008, it has been recorded that the report, the non-availability of which has been specifically argued by the petitioner, had been made by Jamini Baidya, Deputy Director of Rationing. The appellate authority was directed to re-hear the appeal upon making available to the petitioner the copy of the report within two weeks from the date of communication of the order passed in W. P. No. 1004 of 2008. The report which respondents made available to the writ petitioner was a photocopy of the communication of Jamini Kumar Baidya which is dated 11th July, 2007. This communication is of a date subsequent to the date of issuance of the initial notice to show cause. The proceeding against the petitioner originated from the notice to show cause dated 14th June, 2007, which referred to the report of the enquiry officers, and the name of Jamini Baidya was specifically referred to as one of the enquiry officers in this notice. In fact, this show cause notice gives an impression that the enquiry team was led by Jamini Baidya and the names of the other enquiry officers are not mentioned in this notice. In the order of this Court, it was specified that the report, which was directed to be supplied, was that of Jamini Baidya. No such report has been made available to the petitioner in spite of direction of this Court. Non-supply of a report directed to be furnished by the Court thus constitutes a fresh cause of action, and hence the ratio of the decision of the Hon'ble Supreme Court in the case of Udyami Evam Khadi Gramodyog Welfare Sanstha (supra) is not applicable in the present case. The ratio of the decision of the Hon'ble Supreme Court in the case of Delhi Development Authority (supra) also in my opinion does not assist the case of the respondents. This authority was cited in support of the arguments of the respondents that the petitioner was abusing the process of the Court. The ratio of the decision of the Hon'ble Supreme Court in the case of Delhi Development Authority (supra) also in my opinion does not assist the case of the respondents. This authority was cited in support of the arguments of the respondents that the petitioner was abusing the process of the Court. In the factual context of the present proceeding, I do not think such a case has been made out. Thus following the ratio of the decision of the Hon'ble Supreme Court in the case of J. S. Parihar (supra). I am of the view that the failure to furnish such report constituted a fresh cause of action and hence the two writ petitions could not be treated as successive writ petitions for the same relief. 9. NEXT comes the question as to whether the writ petition ought to be dismissed for suppression of material fact. The suppression alleged is that there was confession of guilt on the part of the petitioner in the appeal before the Principal Secretary and Commissioner of Food. I am of the opinion that the writ petitioner ought to have disclosed the said fact in the writ petition. But the question that arises on such admitted non-disclosure is as to whether the non-disclosure is an error of such magnitude that the writ petition should be dismissed on that ground alone. Suppression of material fact is a valid ground for refusing or if granted as an interim measure once, recalling any equitable relief. Thus if an ex parte order is obtained in suppression such fact and later on an application is made in the nature of application under Rule 4 of Order 39 of the Code of Civil Procedure, such ex parte order of injunction can be vacated for such suppression. Even in the absence of such application, Court can take cognizance of such acts of suppression suo motu, if facts of such nature comes to the notice of the Court, and vacate the interim order and in appropriate cases dismiss the action itself. But such a course may not be the only course when a writ petition is being heard after completion of filing of affidavits. But such a course may not be the only course when a writ petition is being heard after completion of filing of affidavits. That is so because in such a situation, the respondents would have the opportunity of bringing to the notice of this Court the fact of such suppression and the Court would then consider the impact of the materials suppressed on the final outcome of the case. Mere suppression of any fact would not automatically result in dismissal of a writ petition. Of course this Court can refuse a relief in a writ petition in the event a gross suppression of any fact is made by the petitioner, of which the respondents may not have any knowledge, but the same otherwise would have impact on the final decision in the proceeding. That would constitute abuse of the process of Court. If the Court is satisfied that the intention of the writ petitioner was to snatch benefit by suppression of certain facts which would otherwise disentitle them of the reliefs, then also Court can refuse relief to a litigant. Such refusal would depend on what has been really suppressed. 10. IN the present case, the appeal made to the Principal Secretary and Commissioner of Food and Appellate Authority under the 2003 Order has not been disclosed in the petition. Contention of the respondents is that in this appeal petition, the petitioner has admitted his guilt. The paragraph in which such guilt appears to have admitted has been brought to my notice reads: "I candidly admit that there might have been some clerical mistakes in my registers since I could not personally supervise the running of my three shops as being the General Secretary of All India Fair Price Shop Dealers' Federation and All Bengal Ration Shop Owners' Association have to frequently be out of station and/or pre-occupied with my functions in those capacities. I have, however, prayed to DDR Barrakpore and RO Bidhannagar for computerization of accounts in my three Fair Price Shops at my own cost on 18.5.2007 for better transparency (Copy enclosed). I would, therefor, one point of the order of DR under reference wherein he has questioned the credibility of loss of my books of accounts stating that though I lodged a G.D. with Bidhannagar (East) PS on 10.02.20071 brought it to his notice in July 2007. I would, therefor, one point of the order of DR under reference wherein he has questioned the credibility of loss of my books of accounts stating that though I lodged a G.D. with Bidhannagar (East) PS on 10.02.20071 brought it to his notice in July 2007. It was incumbent on my part to inform local Rationing Office and my DDR which I did in time expecting that they would inform Director of Rationing if they consider it necessary. Furthermore the reason behind lodging GD on 10.02.2007 after my records and registers were stolen on 02.02.2007 was due to the fact that my employees informed the local Municipal Councillor and the local Ward Committee immediately after the incident and they tried frantically on their part to find out the lost documents. This resulted in some delay though my employees started new records and registers from the very day of the incident i.e. 02.02.2007 when my employees went to the local Rationing Office for certification of new records and registers which were certified. The date of certification was not noticed by my employees. Thus, the onus of certification on back-date did not lie with me or my employees. IN point No. V of the Cancellation Order under reference, the DR has kindly claimed that poor BPL Cardholders were deprived by giving short supply of Levy Sugar, I beg to submit in this connection that the BPL Rationees actually lifted less quantities of their allotted Levy Sugar and it was reflected in my relevant Stock Register. If I had any intention of defaulcating the stock, I could have shown total sale of Levy Sugar to them which I did not do and for not doing such hanky-panky I am placed in the dock. Under the above circumstances, I would not go in further details and challenge the credibility of the DR's Order but would appeal to you for a review on grounds of justice, humanity and for the sake of reinstating the daily bread of myself and members of my family and my employees and their family members since this is the only source of my income and in my other capacities I work voluntarily and without taking a single pence in the greater interest of PDS all over the country including the State of West Bengal. I leave myself at your MERCY and appeal to you with tears in my eyes and with folded hands to let me of. I remain." (quoted verbatim). Case of the respondents is that such admission or mercy petition disentitles the writ petitioner from invoking the writ jurisdiction of this Court on the same issue. On the question of admission, learned counsel for the petitioner has relied on a decision of an Hon'ble Division Bench of this Court in the case of Union of India vs. Sayeed Mirza. In this case it has been held: 'This Court has also considered the submission of Mr. Mondal, learned * Counsel for the petitioners that in course of preliminary inquiry, the delinquent constables had admitted their guilt. That admission is the best piece of evidence against the person making the admission is well-settled principle of law. However, it is always open to the person making the admission to show why the admission is not to be acted upon. In the present case after chargesheet was issued against the respondents, they had not admitted the charges; on the contrary, they had denied the same. At no stage of the proceedings was there any admission of guilt on their part. The alleged admission in course of preliminary inquiry could not therefore be acted upon in course of the regular departmental inquiry where the prosecution failed to establish the charges against the respondents." 11. HAVING considered this authority, I am of the view that what has been stated in the paragraph quoted above does not constitute admission of the allegations against the petitioner contained in the show-cause notice. In the writ petition, the core dispute is as to whether the petitioner had committed offence under paragraphs 18 (iii) and (iv) of the 2003 Order and the basic allegation against the petitioners is that the enquiry officers, Sri. Jamini Baidya DDR and Ors. when they visited the shop on 29th May, 2007 they found the shop closed and on 1st June, 2007 they could not obtain the books of accounts. So far as the shop being found closed there is no admission in the "Appeal Petition" of the petitioner to that effect. The other allegation is that they could not obtain books of accounts. Explanation has been given for this lapse and there is no proper admission on that account also. So far as the shop being found closed there is no admission in the "Appeal Petition" of the petitioner to that effect. The other allegation is that they could not obtain books of accounts. Explanation has been given for this lapse and there is no proper admission on that account also. Thus I do not think nature of suppression is of such degree which would result in rejection of the writ petition itself. 12. THE petitioner had preferred an appeal. That appeal is pending before the authority under the 2003 Order. When this Court had directed the report to be made available to the petitioner, the case of the petitioner is that the same was not made available. I am of the view that since admittedly there is no report signed by Jamini Baidya or no material on the basis of which it can be ascertained that Jamini Baidya accompanied the inspection team, the appellate authority should have had considered that factor first and test the validity of the show-cause notice in that context. In the event there is no report of Jamini Baidya, then in my view, the proper course for the appellate authority should have been to quash the proceeding and give an* opportunity to the respondents to initiate fresh action on the basis of the inspection report. I hold so because though in the subsequent stages, various irregularities have been alleged against the petitioner, the report by which such proceeding was initiated remains unserved on the petitioner. In fact, almost at every stage of the proceeding, the petitioner has sought for such report. In the order of this Court in W. P. No. 1004 of 2008, the report of Jamini Baidya was directed to be furnished. In the order dated 5th July, 2007, in which the order of suspension of the petitioner was directed to continue, it has been stated, "whereas it appears from the Enquiry Team headed by Sri Jamini Baidya, DDR. (ES)...." Conclusion under these circumstances become inevitable that the proceeding against the petitioner was initiated on the basis of a report which does not exist. It is true that in the later stage, additional and specific charges have been brought against the petitioner. But the report of Jamini Baidya still remains the foundation of the proceeding against the petitioner. (ES)...." Conclusion under these circumstances become inevitable that the proceeding against the petitioner was initiated on the basis of a report which does not exist. It is true that in the later stage, additional and specific charges have been brought against the petitioner. But the report of Jamini Baidya still remains the foundation of the proceeding against the petitioner. Neither such report has been produced, nor any explanation has been offered about the existence or non-existence of such report. Moreover, there is a subsisting direction of this Court for supply of such report. Proceeding against the petitioner without supply of such report would result in violation of the principles of natural justice and this Court in such a situation would not decline to entertain the present petition on the ground of availability of alternative remedy. The judgment of the Hon'ble Supreme Court reported in 1979(4) SCC 22 thus does not come in aid of the respondents. 13. THE impugned order of the appellate authority is accordingly quashed. For the reasons indicated above, the notice to show cause also stand quashed and the licence of the writ petitioner shall stand restored. However, it shall be open to the authorities to consider the question for issuing a fresh show-cause notice on the basis of the report which has been discussed in the earlier part of this judgment. 14. THE writ petition stands allowed in the above terms. There shall, however, be no order as to costs. 15. URGENT photostat certified copy of this order, be supplied to the learned Advocates for the parties, if applied for, with necessary formalities as expeditiously as possible.