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2011 DIGILAW 401 (CAL)

Rajesh Dhanuka v. STATE OF WEST BENGAL

2011-03-19

PINAKI CHANDRA GHOSE, S.K.SINHA

body2011
JUDGMENT Ghose, J. 1. THESE three appeals have been filed against a common judgment and/or order dated 20th June, 2008 passed by the Hon'ble Single Judge disposing three writ petitions being W.P. No. 45 of 2007, W.P. No. 489 of 2007 as well as G.A. No. 252 of 2007. 2. IN the said judgment, His Lordship was pleased to set aside the Third Enquiry Report dated 28th November, 2006 and further directed that the appointment letter and the licence issued in favour of the private respondent Jugal Kishore Sanghai, were set aside. The facts of the case briefly are as follows:- Pursuant to a vacancy declared for appointment of a M.R. Distributor at Assam More, Jalpaiguri, applications were invited. Accordingly applications were received by the authority. An enquiry was held by a committee led by the Chief Inspector and on the basis of an Enquiry Report of the Sub-Divisional Controller, Food and Supply (hereinafter referred as the 'SCFS') a panel was prepared of three applicants. The said report was sent to the District Controller, Food and Supply ('DCFS') and the same was placed before the Directorate of District Distribution, Procurement and Supply (hereinafter referred to as the 'DDP and S). The Director, DDP and S directed re-enquiry by the SCFS and upon re-enquiry; a report was submitted by SCFS on 10th October, 2006. The Second Report was forwarded to the office of the DDP and S and the DDP and S, in the absence of any finding regarding loading and unloading facility and categorical recommendation of any particular candidate, ordered re-enquiry in respect of all applications. On the basis of the said direction a notice was issued and enquiry held. Pursuant to such enquiry a third enquiry report was submitted recommending Jugal Kishore Sanghai as a M.R. Distributor. The same was forwarded to the DDP and S and on the basis of such recommendation made on 17th January, 2007 approval was granted. On 18th January, 2007 an appointment letter issued in his favour. Thereafter, a licence was granted in favour of Jugal Kishore Sanghai. 3. THE challenge was thrown that the said selection process is contrary to the provisions of the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (hereinafter referred to as the 2003 Control Order.' 4. On 18th January, 2007 an appointment letter issued in his favour. Thereafter, a licence was granted in favour of Jugal Kishore Sanghai. 3. THE challenge was thrown that the said selection process is contrary to the provisions of the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (hereinafter referred to as the 2003 Control Order.' 4. A writ petition was moved by one Rajesh Dhanuka praying for cancellation of the appointment and licence of Jugal Kishore Sanghai. Sunil Saha made an application for addition of party in the said writ petition filed by the Rajesh Dhanuka. Subsequently, on 17th April, 2007, Sunil Saha also filed a writ petition challenging and praying for cancellation of such appointment. Both the writ petitions of Rajesh Dhanuka and Sunil Saha and connected application were disposed of by a common judgment by the learned Single Judge holding that the enquiry report dated 28th November, 2006 cannot be sustained and there is no infirmity in the appointment of Mr. Ahsan to enquire into the matter and appointment letter and licence granted in favour of Jugal Kishore Sanghai were set aside. 5. BEING aggrieved and dissatisfied with the said order Rajesh Dhanuka preferred the appeal challenging that the learned Single Judge erred in observing that the appellant has challenged only the third enquiry report and thereby erred in not directing to conduct a fresh enquiry. After setting aside of the third enquiry report despite holding that there is no infirmity in the appointment of Mr. H. Ahsan to enquire into the matter. 6. SUNIL Saha preferred an appeal and submitted that in the appeal the learned Single Judge ought to have directed the respondents to issue appointment in his favour upholding the second enquiry report cancelling third enquiry report. Our attention has been drawn to Clause 23 of a Notification bearing No. 5880-FS which is dated 22nd December, 2003 and published in the Kolkata Gazette dated 28th March, 2005 whereby the amendment was given effect to in respect of appointment, issue of licence and termination of dealership in the interest of public distribution system in the state and by such notification the earlier such Clauses superseded and the new Clauses 19, 22, 23 and 27 was inserted by the authorities. Our attention has been drawn to 'Clause 23' of the said notification which reads as follows:- "Clause 23: Appointment of Distributor - (i) In the event of a vacancy arising out of death or resignation of an existing Distributor or for better functioning of the PDS in a particular area, the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of vacancy report and the DCFS will transmit the same to Director-DDP and S for necessary action in the matter. The Director-DDP and S after obtaining necessary approval from the Government shall declare such vacancy through public notification/advertisement in the concerned SCFS/ DCFS office for new vacancy only. Where vacancy arises due to death incapacitation on medical ground for existing Distributor, such vacancy shall not initially be notified. In such case, prayer of the legal heirs will be considered with preference on compassionate ground provided required minimum qualifications are fulfilled, if out of several legal heirs, one legal heir is the claimant, he is to submit no objection of other legal heirs along with his prayer. This order will not take effect when both husband and wife possess separate licences and one of them dies, Government is the final authority for such appointment. (ii) The applications having been received from the bonafide citizen of the State for appointment of Distributor against particular vacancy, the SCFS shall enquire within two weeks from the last date of receipt of the applications and the report so prepared shall be sent with his comments to the concerned DCFS. The said DCFS will forward the same with his recommendation to the Director-DDP and S. The Director-DDP and S after obtaining necessary approval from the Government shall arrange or empower any officer for issue of appointment letter together with licence in prescribed Form. (iii) If the Director-DDP and S in any particular case does not agree with the enquiry report of SCFS or recommendations of DDFS, as the case may be, he shall arrange enquiry into the matter by any competent officer or by a team and thereafter shall forward the case with his comments to the Government for necessary approval. The Distributor so appointed shall have to deposit a licence fee of Rs. The Distributor so appointed shall have to deposit a licence fee of Rs. 500/- and the licence shall remain valid for two years from the date of issue. The licence thereafter shall be required to be renewed every year against a renewal fee of Rs. 200/- subject to satisfactory performance of the licence. If there is any adverse report against any distributor, Government will have the full right to terminate such Distributorship. Besides the licence fee, the Distributor shall be required to furnish a security deposit of Rs.10,000/- at the initial stage in the form of National Savings Certificate, Kishan Vikash Patra etc. pledged in favour of the Governor of West Bengal. (iv) While appointing a Distributor, the concerned authority that is the SCFS/DCFS shall take into consideration the volume of business, number of Dealers to be tagged with the Distributor and other factors as may be required for examination in the interest of PDS. (v) In the event of loss/defacement/damage of the licence so issued to a Distributor, the Distributor may apply for a duplicate licence on deposit of Rs. 1,000/- only and Director-DDP and S shall arrange or empower any officer for issue of the duplicate licence after proper enquiry made by the DCFS/SCFS from the date of application." 7. IT is the case of the appellants that the first enquiry report which was submitted by a team led by the Chief Inspector is contrary to the 2003 Control Order and, therefore, it cannot be treated as a report in the eye of law. IT is further submitted that the Director, DDP and S in directing the SCFS to make the second enquiry, has acted contrary to the provisions of the 2003 Control Order. As per Clause 23 (iii), if the Director-DDP and S in any particular case does not agree with the enquiry-report of SCFS or recommendations of DDFS, as the case may be, he shall arrange enquiry into the matter by any competent officer or by a team and thereafter shall forward the case with his comments to the Government for necessary approval. Therefore the direction upon SCFS to make an enquiry is not permissible in the eye of law. Therefore, it is submitted that he has acted contrary to the provisions of 2003 Control Order and such an enquiry is not sustainable in law. 8. Therefore the direction upon SCFS to make an enquiry is not permissible in the eye of law. Therefore, it is submitted that he has acted contrary to the provisions of 2003 Control Order and such an enquiry is not sustainable in law. 8. THE third enquiry report has been made at the instance of the Minister-in-Charge who has no role to play under the 2003 Control Order. It is also submitted that the third enquiry conducted by Mr. Habibul Ahsan is also not sustainable in law. Since, Mr. Habibul Ahsan was accompanied by another Deputy Director of the Directorate and from the findings it would appear that the report has been referred to as "our findings". Therefore, it is submitted that the report is not an independent finding of Mr. Ahsan. Therefore, the direction of the DDP and S dated 19th October, 2006 has not been correctly given effect to and therefore, the third report is also liable to be set aside. It is further stated that the enquiry reports dated 10th October, 2006 and 28th November, 2006 should be set aside. It is submitted that the enquiry should be made de novo without any restriction or on a particular subject. It is also submitted that the Deputy Director was not authorized to give an opinion and the conduct would show that it is a product of total non-application of mind. It is further stated that under the rules of business the Minister-in-Charge is not empowered to look after the day to day affairs. 9. ON the contrary, the learned Advocate appearing on behalf of the State submitted that the Deputy Director is higher in rank than the Sub-Divisional Controller and the District Controller (Food and Supply). It is further submitted that Clause 2(i) of the 2003 Control Order defines a 'Director' and a 'Deputy Director1 is undoubtedly higher in rank than an 'Assistant Director' and can exercise powers of a 'Director'. Clause 23(iii) of the 2003 Control Order permits the Director, DDP and S in case of disagreement to direct a competent officer or a team to make an enquiry. 10. IT is further submitted that the challenge in the writ petitions are in respect of the enquiry reports but which particular enquiry report is under challenge has not been specified. In the writ petition the appointment of the Deputy Director has not been challenged. 10. IT is further submitted that the challenge in the writ petitions are in respect of the enquiry reports but which particular enquiry report is under challenge has not been specified. In the writ petition the appointment of the Deputy Director has not been challenged. Only the first enquiry report has been challenged. The report of the Deputy Director dated 28th November, 2006 is not under challenge. The first enquiry report is no longer in existence and the second enquiry report dated 10th October, 2006 will exist even if, the third enquiry report is set aside. IT is further submitted that the report dated 10th October, 2006 is as per Clause 23 of the 2003 Control Order which was placed before the District Controller and the Deputy Director (Food and Supply) has forwarded it to the Director, DDP and S. The order of the Minister-in-Charge is based on a complaint received by him and the Director has given his reasons for conducting the re-enquiry. It is also submitted that in the notice inviting applications in February, 2003 it has specifically been provided that a candidate must possess a suitable godown at a suitable position. It is further submitted that the enquiry conducted by the Deputy Director, Mr. Ahsan is known to the petitioner as the term 'dummy' candidate which is appearing in the report dated 28th November, 2006 and the said fact has been taken as a ground of challenge in the writ petition. Therefore, the petitioner is aware of the report dated 28th November, 2006. It is further submitted that the enquiry is not a quasi judicial in nature and, therefore, not subject to judicial review. It is also submitted that the third enquiry was made after notice to all the parties and, therefore, no interference is called for. 11. IN reply it is submitted that both the appeals be disposed of by directing the respondent authorities to hold a fresh enquiry in terms of the order dated 19th October, 2006. The Director has clearly indicated the reason of his disagreement with the report of SCFS and DCFS in his order dated 19th October, 2006. 12. AFTER hearing all the parties and after analyzing the materials placed before us, it appears that the enquiry report dated 28th November, 2006 was made by Mr. Habibul Ahsaji with the assistance of Mr. The Director has clearly indicated the reason of his disagreement with the report of SCFS and DCFS in his order dated 19th October, 2006. 12. AFTER hearing all the parties and after analyzing the materials placed before us, it appears that the enquiry report dated 28th November, 2006 was made by Mr. Habibul Ahsaji with the assistance of Mr. Asim Bose, although the Director (DDP and S) by an order dated 19th October, 2006 directed Mr. Habibul Ahsan to make an enquiry. There is no explanation has been given for the presence of Mr. Bose, at the time of enquiry. Therefore, it cannot be said to be an independent report. Therefore, in our opinion, the Hon'ble Single Judge on such reason held that third report dated 28th November, 2006 cannot be sustained in the eye of law. In our considered opinion, His Lordship correctly came to the conclusion and we endorse the reason expressed by His Lordship. From the facts of the writ petition it further appears to us that His Lordship correctly held as follows:- The relief sought in the writ petition is the Enquiry Report without specifying the specific report whose cancellation is sought. In the grounds too the Third Enquiry Report has been challenged, except in Grounds where the re-enquiry made by the Sub-Divisional Controller (Food and Supply) has been challenged. Therefore the report under challenge is the Third Enquiry Report dated 28th November, 2006 and no other report. Therefore, the Court need not deal with any other report. In the reply, affirmed on 27th April, 2007 for the first time and during arguments, the first and second reports have been challenged. In the petition the same has not been challenged therefore no opportunity was given to the respondents to meet the case and the scope of the writ petition cannot be expanded." 13. THEREFORE, in our considered opinion, His Lordship correctly held that the report under challenge is only the Third Enquiry Report dated 28th November, 2006 and no other report. THEREFORE, His Lordship held that the scope of the writ petitioner cannot be expanded. We endorse His Lordship's view and we do not want to enlarge the scope of the writ petition which was filed before His Lordship at this stage. 14. THEREFORE, His Lordship held that the scope of the writ petitioner cannot be expanded. We endorse His Lordship's view and we do not want to enlarge the scope of the writ petition which was filed before His Lordship at this stage. 14. IT further appears that the First Enquiry Report which was set aside on the ground that such report was not a report by the SCFS and that is the reason for setting aside of the said report by the Director, DDP and S with a direction upon the SCFS to make the initial enquiry as postulated by the 2003 Control Order and which resulted in the Second Enquiry Report. The Second Enquiry Report was also placed before the Director, DDP and S along with the complaint and resulted in the direction upon Mr. Habibul Ahsan, Deputy Director being appointed to make an enquiry under Clause 23(iii). The Director, DDP and S has a right in case of disagreement with the report for recommendation to arrange for an enquiry 'by any competent officer or by a team'. But, the said Enquiry Report also cannot be sustained in the eye of law since the said Enquiry Report was made contrary to the Clause 23 (iii) and, therefore, such enquiry report also cannot be sustained in the eye of law. 15. THEREFORE, on such reasons we hold that His Lordship has correctly came to the conclusion that the said enquiry report cannot be sustained in law. 16. IT appears to us that the so far the complaint made before the Minister-in-Charge and the Minister directed the same to be placed before the DDP and S for enquiry. Therefore, in our considered opinion, His Lordship correctly held that the Minister-in-Charge was in any way cannot be said was involved in the decision making process. In these circumstances, and on such reasons Third Enquiry Report was set aside by His Lordship and in our considered opinion, we do not find that the said order suffers from any illegality or irregularity. On the contrary the reasons given by His Lordship are all endorsed by us considering the facts and materials placed before us. 17. ACCORDINGLY, we find no merit in these appeals. 18. FOR the reasons stated hereinabove, the appeals are dismissed. Photostat certified copy of this judgment, if applied for, be supplied to the parties.