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2012 DIGILAW 491 (CAL)

Abdul Malek v. STATE OF WEST BENGAL

2012-06-04

ANIRUDDHA BOSE

body2012
Judgment : ANIRUDDHA BOSE, J.:- 1. The writ petitioner is a partner of a firm operating in its trade name “Damodar Enterprise”, engaged in the business of distributorship under the provisions of the West Bengal Public Distribution System, (Maintenance and Control) Order 2003. The petitioner, along with one Monohar Chandra Halder initially had been appointed as a modified ration (M.R.) distributor in the year 1985. At that point of time, practise of food and supplies department of the Government of West Bengal was to appoint such distributor by executing agreements with the individuals selected on the basis of stipulations of executive instruction. It appears that on 3 October 1983, the writ petitioner and said Monohar Chandra Halder had entered into a partnership agreement. (I shall refer to them as AM and MH respectively later in this judgment.) A copy of this agreement has been produced before this Court at the time of hearing, and from this agreement, I find that one of the main objects of this firm was to participate in the business of storage and sale of permitted food and related items on the basis of licence issued by the Government. A vacancy for M.R. Distributorship was declared on or about 25 January 1984 by the Sub-Divisional Controller (SDC), Food and Supplies, Burdwan Sadar at Polempur under his zone. The petitioner along with MH as joint partners of said Damodar Enterprise applied for appointment as M.R. Distributor for this vacancy. Upon selection, a letter of appointment was issued in favour of “(1) Abdul Malek (2) Monohar Chandra Halder, prop. M/s DAMODAR ENTERPRISE” by the SDC. 2. The distributorship agreement was entered into by the State Government with the petitioner and MH on 30 July 1985. In this agreement also, the petitioner and MH were referred to as “prop.” of the said firm. In this agreement, there is no specific reference to the firm as regards its status as partnership, but this agreement records the names of both AM and MH with that abbreviation, as the second party to this agreement, which abbreviation implies proprietors of Damodar Enterprise. It was qualified further in this agreement that they were carrying on business as “M/s Damodar Enterprise”. There is no allegation in this proceeding over running of such business till the year 2006. It was qualified further in this agreement that they were carrying on business as “M/s Damodar Enterprise”. There is no allegation in this proceeding over running of such business till the year 2006. In the years 1988, 1992 and 1994, certain further agreements appear to have been executed concerning composition of Damodar Enterprise. But so far as relationship of the petitioner and MH with the food and supplies department is concerned, no alteration in terms thereof appears to have taken place. 3. In the year 2003, the West Bengal Public Distribution System (Maintenance and Control) Order was promulgated under the provisions of Section 3 of the Essential Commodities Act 1955. By this Control Order, distributorship of this nature was brought within its ambit, specifying the manner of their appointment as also regulation of their operations through a prescribed administrative hierarchy. As regards existing distributors who were operating when this Control Order was promulgated, they were given licences under the 2003 Control Order by the designated officer of the Food And Supplies Department. It is admitted position that the petitioner’s firm was not required to undergo any fresh selection process for this purpose and licence was issued in favour of (1) Abdul Malek, (2) Monohar Chandra Halder. In this licence also they were described as “prop of M/s. Damodar Enterprise”. Such license was issued in the statutory form being form ‘C’ on or about 9 September 2006. 4. The genesis of the dispute involved in this writ petition lies in a complaint lodged by one Sk. Ajimuddin, being the intervenor in this proceeding, over issue of licence in the names of AM and MH. Though Sk. Ajimuddin was permitted to intervene in this proceeding without any formal order adding him as a party, he has contested this writ petition as a party respondent only, by filing affidavit, and argument has also been advanced on his behalf by his learned counsel. His case is that he is a partner of the firm, along with AM and MH and Safi Wahuda Rasul, who is the wife of the petitioner. The firm was reconstituted on 1 April 1994 and the recital part of this deed records that the same was being effected for amendment of some of the clauses of earlier deed of partnership. The firm was reconstituted on 1 April 1994 and the recital part of this deed records that the same was being effected for amendment of some of the clauses of earlier deed of partnership. The intervenor’s compliant addressed to the District Controller (DC) of Food & Supplies, Burdwan was first made on 1 September 2006. Substance of his complaint was that he was a partner of M/s. Damodar Enterprise along with Monohar Chandra Halder, Abdul Malek and Safi Wahuda Rasul, but the petitioner had applied for such licence in his individual name. Case of the intervenor before this Court is that the original partnership firm had been reconstituted, and all the four aforesaid individuals became partners of the firm. Fresh deed of partnership was executed for the purpose of carrying on the business of wholesale M.R. distributors of rice, wheat etc. but the license for the same was being surreptitiously obtained by the writ petitioner under the 2003 Control Order in the name of two partners only. 5. From the materials disclosed, there is no evidence of initiation of any formal proceeding by the authorities on the basis of that complaint. A report, copy of which has been Annexure “P6” to the writ petition, was made by the DC to the Director, District Distribution Procurement and Supply, (DDPS), Food & Supplies Department. In this report dated 6 November 2006, he however observed that he made an enquiry into the allegations. His finding on the issue was that the District Magistrate, Burdwan had disposed of the case by appointing Domodar Enterprise, whose partners were Sri Monohar Halder and Sri Abdul Malek as M.R. Distributor at Kejurhati after declaration of vacancy. Subsequently, the shop-cum-godown stood transferred to Polempur. Damodar Enterprise in the meantime did not submit any application for inclusion of any other partner and office of the appropriate authority had not approved the same. It was also indicated in that report in Sk. Ajimuddin was an outsider and unknown to the office of the DC. It was also disclosed in that report that licence of M/s Damodar Enterprise in form ‘A’ under the 2003 Control Order had been issued afresh upon observing all formalities and legal compliance. 6. Licence of M.R. Distributorship under the 2003 Control Order issued in favour of AM and MH as proprietors of the said firm had initial validity till 31 December 2006. 6. Licence of M.R. Distributorship under the 2003 Control Order issued in favour of AM and MH as proprietors of the said firm had initial validity till 31 December 2006. It appears that another complaint was lodged by the intervenor on 5 March 2007 in the same line. In this complaint, a copy of which has been made Annexure “X4” to the affidavit-in-opposition of the intervenor to the main writ petition, rectification of the licence already issued was requested, for recording therein the names of all the partners. On 4 April 2007, the DC issued a memorandum requiring explanation of AM and MH as to why and under what circumstances they had obtained the licence without disclosing the names of all the partners. 7. On expiry of the term of the licence under the 2003 Control Order, the petitioner and M.H. had applied for renewal of the licence in the same terms. Such application for renewal was under consideration when the memorandum dated 4 April 2007 was issued and this fact was also recorded in this memorandum. In their explanation, AM and MH informed the DC that Wahuda Rasul and Sk. Ajimuddin were brought into their business as “business working partners” by executing a Deed of Agreement in the year 1992, followed by a fresh deed of agreement in the year 1994. It was pointed out in their reply that the intervenor was never considered as their partner in their business of distributorship and his name was never included in the licence. The petitioner, in his joint reply with MH also referred to the earlier investigation of DC in respect of the same allegation. The DC however was not satisfied with such explanation and by a further memorandum issued on 20 April 2007, directed the petitioner and MH to appear for personal hearing. 8. This writ petition has been filed questioning legality of the notices to show cause dated 4 and 20 April 2008. At the motion stage of this proceeding, this Court was pleased to stay the operation of the said notice to show cause. One of the grounds on which the said notice was challenged was that under clause 26(c) of the Control Order, power to issue such notice vested in the SDC, but the impugned notice originated from the DC directly. Directions were given for filing affidavits by the respective parties. 9. One of the grounds on which the said notice was challenged was that under clause 26(c) of the Control Order, power to issue such notice vested in the SDC, but the impugned notice originated from the DC directly. Directions were given for filing affidavits by the respective parties. 9. Subsequent to filing of the writ petition, certain further developments took place in relation to the subject controversy, which were brought to the notice of this Court by way of filing supplementary affidavits. A supplementary affidavit has been filed by the petitioner affirmed on 27 April, 2007. On behalf of the State respondents a supplementary affidavit has been filed on 20 April 2011 affirmed by one Chittaranjan Das, mainly to place on record an order passed by the respondent no. 3, being the Director, District Distribution Procurement and Supply (DDPS) on 29 May 2009. AM and MH had also made a representation against the notice to show-cause issued on 4 April 2007 before the Appellate Authority, being the Regional Deputy Director. This representation is dated 25 April 2007. The Regional Deputy Director (RDD) in his response addressed to the petitioner and MH jointly, opined that the SDC was the competent authority to issue such notice, and the notice issued by the DC was not valid and proper. This communication was issued on 27 April 2007. Earlier, on 26 April 2007, the same authority i.e. the RDD had in substance rejected the intervenor’s application for inclusion of his name in the licence by issuing a memorandum bearing number 95/RDD/F.S./BWN. A substantive order was passed by the Regional Joint Director (RJD), Food and Supplies, Burdwan region in respect of plea of the writ petitioner and MH on 17 November 2008, directing the DC to renew the licence of Damodar Enterprise. The intervenor, Sk. Ajimuddin made a further representation before the DDPS against the direction issued by the RJD for renewal of licence. Hearing was undertaken on the basis of such representation by the DDPS on 16 April 2009. The petitioner and MH were represented by their learned Advocate on that date and the intervenor was also heard. The DDPS, on 29 May 2009 set aside the order of the RJD. This order was passed by the DDPS not on merit, but he observed in his decision that the order of the RJD may militate against the interim order passed in this matter. The DDPS, on 29 May 2009 set aside the order of the RJD. This order was passed by the DDPS not on merit, but he observed in his decision that the order of the RJD may militate against the interim order passed in this matter. It was held by him:- “The Regional Joint Director passed an order directing the DCF&S, Burdwan, to renew the licence while a writ petition has remained pending before the Hon’ble High Court. The order may militate the interim order passed by the Hon’ble Court and frustrate the proceeding of the case pending before the High Court. The Regional Joint Director has passed his order without hearing S.K. Ajimuddin while partnership deed produced demonstrates that the applicant is one of the partners. In view of above, I dispose of the petition of S K Ajimuddin by setting aside the order dated 17.11.2008 passed by the Regional Joint Director directing the DCF&S, Burdwan, to renew the licence of the firm M/S Damodar Enterprise and also by directing that parties shall comply with order passed by the Hon’ble High Court in the writ petition WP No. 552 of 2007 which is still pending in the Hon’ble Court.” 10. Another supplementary affidavit has been filed by the intervenor on 21 April 2011. In this affidavit it has been stated that licence had been issued under the West Bengal Rice and Paddy (Licensing and Control) Order, 1969 in connection with the said business in the trade name of the firm that is M/s. Damodar Enterprise. By filing this supplementary affidavit, the intervenor sought to establish that licence was being issued under the Control Order in favour of the partnership firm only, which on reconstitution, had four partners but the petitioner was suppressing this fact from the food and supplies authorities. Learned counsel for the intervenor has also drawn my attention to several allocation orders issued in favour of the firm, Damodar Enterprise, without specifically naming the partners. 11. An application has also been taken out by the intervenor, registered G.A. No. 1882 of 2007 in which he has prayed for sanction of this Court for prosecuting the writ petitioner for practising fraud upon which District Controller at Burdwan by misrepresenting himself as the proprietor of M/s. Damodar Enterprise. 11. An application has also been taken out by the intervenor, registered G.A. No. 1882 of 2007 in which he has prayed for sanction of this Court for prosecuting the writ petitioner for practising fraud upon which District Controller at Burdwan by misrepresenting himself as the proprietor of M/s. Damodar Enterprise. In this application, main allegation against the writ petitioner is for having filed false information to a public servant as regards status of the firm and for having used expression “Deed of Agreement” instead of “Partnership Deed” for describing the Deed of Reconstitution. 12. The main issue on which I have been addressed in this writ petition is whether there was any manipulation by the writ petitioner in obtaining the licence under the 2003 Control Order, by suppressing the identity of the intervenor and Wahuda Rasul as partners of Damodar Enterprise. The notice to show cause forms the primary cause of action of this proceeding, in which allegation has been made that the renewal application was filed without disclosing the names of all the partners on record and the petitioner surreptitiously managed to obtain license from the DC defeating the legitimate right of Sk. Ajimuddin, the intervenor in this proceeding, to be permitted to carry on business along with the other partners. The specific statutory violation the petitioner is alleged to have committed, it was pointed out in course of hearing on behalf of the state respondents was clause 11 of the conditions of licence, which prescribes that the licence shall cease to be valid in the event of reconstitution of the partnership firm. 13. Case of the petitioner has been argued by Mr. Saktinath Mukherjee and Mr. Kalyan Kumar Bandopadhyay, learned senior counsel. It has been submitted on behalf of the petitioner that after the DC had examined the first complaint of the intervenor and found no violation in grant of licence to the petitioner, there was no scope for embarking upon a second enquiry to examine the same issue. Relying on various authorities of the Supreme Court and of this Court, it has been argued on behalf of the petitioner there cannot be successive enquiries on the same allegation against a person and such subsequent enquiries shall be barred applying principle akin to the doctrine of res judicata. The authorities relied upon in support of this submission are:- i) R. R. Verma & Ors. Vs. The authorities relied upon in support of this submission are:- i) R. R. Verma & Ors. Vs. Union of India & Ors. reported in 1980 (3) SCC 402 . ii) Debabrata Tripathy & Ors. Vs. State of West Bengal & Ors. Reported in 1981 (1) CLJ 269 . iii) Sanjib K. Sen Vs. Director (Admn) Government of India Dept. of Supply directorate General of Supplies & Disposals (Vigilence dept.) reported in 78 CWN page 841. iv) K. R. Deb Vs. The Collector of Central Excise, Shillong. reported in AIR 1971 SC 1447 . 14. It has also been asserted on behalf of the petitioner that the DC under the 2003 Control Order has no jurisdiction to issue notice to show cause on allegation of violation of condition of licence, as it is the sub-divisional controller who has been conferred with power under the statute to issue such notice. On merit, main submission of the petitioner is that the licence was issued under the 2003 Control Order directly in favour of the writ petitioner and Monohar Chandra Halder, joint partners of Damodar Enterprise. As regards impact of execution of the deed reconstituting the partnership, case of the petitioner is that the intervenor had been inducted as a “working business partner” only but he had no role to play so far as business of distributorship under the 2003 Control Order was concerned. Thus, there was no induction of any stranger into the business of distributorship, which continued as it did since the agreement was executed in the year 1985. In any event, it is the case of the petitioner that the intervenor cannot seek implementation of a partnership agreement through the food and supplies department, and that too, without raising the issue for more than a decade. According to the petitioner, as per the order of the DC issued on 6 November 2006, question of legality of appointment of the petitioner had attained finality and since this order was never challenged, it was no more open to the department to initiate proceeding afresh on fresh complaint made by the intervenor. 15. On behalf of the State respondents, Mr. Milan Bhattacharya, learned counsel argued that writ petition was premature, and no legal right of the petitioner had been prejudiced or adversely affected by mere issue of notice to show cause. 15. On behalf of the State respondents, Mr. Milan Bhattacharya, learned counsel argued that writ petition was premature, and no legal right of the petitioner had been prejudiced or adversely affected by mere issue of notice to show cause. On the aspect of the jurisdiction of the DC to issue such notice, his justification is that such jurisdiction is derived from a memorandum dated 27 October 2005 bearing No. 893 FMR/11/S-5/2004 issued by the DDPS in terms of Clause 23 of the 2003 Order. As per the memorandum, all the District Controllers have been authorised to effect renewal of licence of existing distributors. This memorandum specifically stipulates:- “However, the District Controllers, Food & Supplies under the Food & supplies Department are authorized to renew the old licences and issue licences for Distributors already appointed in different Districts of West Bengal. Before renewing licences the District Controllers must unsure that prior approval of the competent authority as contained in the aforesaid Government orders has been meticulously obtained.” 16. Relying on this memorandum, it has been urged on behalf of the respondent authorities that at the time of renewal of a licence, it would be within the jurisdiction of the District Controller to verify the eligibility of the individual distributors and ascertain as to whether they were operating within the parameters specified by the Control Order or not. Issue of notice to show cause, it was submitted, was ancillary to exercise of such power. 17. Specific charge against the petitioner, as I have already indicated, is violation of Clause 11 of condition of licences which is granted in statutory form. This clause specifies:- “The licence will cease to be valid in the event of death or resignation of licensee or reconstitution of a partnership firm or transfer of interest of the licensee in his business.” 18. Mr. Ganguly, learned counsel appearing on behalf of the intervenor has supported the stand of the state respondents that the writ petition is premature. So far as the decision of the DC reflected in the memorandum dated 6 November 2006 is concerned, his submission is that this memorandum is only an interdepartmental memorandum which cannot constitute a final decision on the dispute raised by his client. The judgment relied on in support of his submission on this point is a decision of the Supreme Court in the case of Union of India & Ors. Vs. The judgment relied on in support of his submission on this point is a decision of the Supreme Court in the case of Union of India & Ors. Vs. Vartak Labour Union reported in 2011 (2) Supreme 238 . In this judgment it has been held:- “14. It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right.” 19. The object which the intervenor seeks to achieve by raising complaint over the manner in which licence has been issued in favour of the petitioner is that his name ought to have been incorporated in the licence as a partner of Damodar Enterprise. On the question of delay in making his complaint, his defence is that all along the licence was being issued and renewed in the firm name, and he had no cause for complaint, as he was a partner of the firm. On behalf of the intervenor, it has been further submitted that the writ petitioner had obtained the licence under the 2003 Control Order surreptitiously in his own name along with that of MH without disclosing the names of all the partners and for this purpose it was well within the jurisdiction of the DC to issue the notice to show cause. 20. I shall first deal with the question of maintainability of the writ petition as it has been contended by the state respondents as well as the intervenor that a writ petition would not lie against a notice to show cause, as by a notice to show cause, no legal right of the recipient is infringed. On this point, on behalf of the state respondents, the authorities relied upon are a decision of the Supreme Court in the case of Special Director Vs. Mohammed Ghulam Ghouse reported in AIR 2004 SC 1467 and a Division Bench judgment of this Court in the case of Prabhat Kumar Chakraborty Vs. Union of India (2010) (1) CHN (Cal) 619. Learned counsel for the intervenor has referred to a judgment of the Supreme Court in the case of Trilok Singh and Co. Vs. District Magistrate, Lucknow & Ors. [ (1976) 3 SCC 726 ] and Director of Settlements A.P. Vs. M. R. Apparao (2002 AIR SCW 1504). Union of India (2010) (1) CHN (Cal) 619. Learned counsel for the intervenor has referred to a judgment of the Supreme Court in the case of Trilok Singh and Co. Vs. District Magistrate, Lucknow & Ors. [ (1976) 3 SCC 726 ] and Director of Settlements A.P. Vs. M. R. Apparao (2002 AIR SCW 1504). These two authorities have been relied on in support of submission on behalf of the intervenor that no legal right of the writ petitioner has been prejudiced merely by issue of notice to show cause. According to the respondents, the petitioner will get enough opportunity to answer the allegations before the statutory authority and since factual issues would have to be dealt with to adjudge the complaint of the intervenor, the Writ Court ought not to interfere at this stage with the process of enquiry initiated by the statutory authority. None of these authorities however lay down in absolute term that a show cause notice ought to be insulated from judicial intervention altogether. In the case of Special Director Vs. Mohd. Ghulam Ghouse (supra), a notice to show cause alleging violation of the provisions of Foreign Exchange Regulation Act, 1973 was in substance stayed by the High Court by passing an interim order. It was observed by the Supreme Court that no reason was indicated in the order granting interim protection, and in that context the proceeding was permitted to continue. It was held in that judgment:- “5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless, the High Court is satisfied that the show cause notice was totally nonest in the eye of law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine and the writ petitioner should invariably be directed to respond to the show cause notice and take all stands highlighted in the writ petition. Whether the show cause notice was founded on any legal premises is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the Court. Further, when the Court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is accorded to the writ petitioner even at the threshold by the interim protection, granted.” In the case of Prabhat Kumar Chakraborty (supra), the controversy was over a departmental proceeding initiated by a notice to show cause, and the same principle of law was reiterated by a Division Bench of this Court:- “It has been held by the Apex Court that a mere show cause or charge-sheet does not give rise to any cause of action because it does not amount to any adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction.” 21. Authorities are uniform on the point that in the event a notice to show cause is issued by an authority not having jurisdiction to do so, then such notice can be challenged in a writ proceeding. This principle has been followed by the Supreme court in the case of Chief of Army Staff Vs. Major Dharam Pal Kukrety [1985(1) SLR 658]. The petitioner before me has raised this vey issue, questioning the jurisdiction of the DC to issue such notice. Moreover, the complaint of the petitioner that the dispute involved in the notice to show cause already stands settled also touches upon the question of jurisdiction. I accordingly reject the preliminary objection raised on behalf of the respondents on maintainability of this writ petition. In the case of Trilok Singh & Co. (supra), the question of jurisdiction of the authority issuing the notice was not under challenge. In the case of Director of settlements, A.P. Vs. M. R. Apparao (supra) the dispute related to receiving payments under the provisions of Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948. In the case of Trilok Singh & Co. (supra), the question of jurisdiction of the authority issuing the notice was not under challenge. In the case of Director of settlements, A.P. Vs. M. R. Apparao (supra) the dispute related to receiving payments under the provisions of Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948. It has been held in this judgment that violation of legal right is a precondition for applying for a writ in the nature of mandamus. Issue of a notice to show cause by an authority not having jurisdiction to do so breaches the legal right of the recipient of such notice. An individual or a firm cannot be compelled to participate in a proceeding having penal consequence before an authority not having jurisdiction to initiate such proceeding. Two other decision of the Supreme Court, The State of Madras Vs. C. P. Sarathy ( AIR 1953 SC 53 ) and Raghunandan Panda Vs. State of Orissa ( AIR 1975 SC 434 ) were cited to contend that mere administrative action does not give rise to justiciable right. But in this case, the proceeding initiated has quasi-judicial character as the same can result in penal steps being taken against the petitioner. In any event, an administrative order having adverse civil consequence can give rise to justiciable right. These four decisions thus do not assist the respondents’ case on this point. 22. Now I shall address the question as to whether the report of the DC submitted before the DDPS had finally set the controversy at rest, and the same issue can be resurrected again or not by the DC. A person cannot be required to undergo one enquiry after another on the same allegation. On behalf of the petitioner, a large body of authorities has been relied on to substantiate this point. As corollary, it has been urged that an authority cannot review its own decision unless statute specifically provides for such power to review. Referring to the opinion of the DC in the communication of 6 November 2006, it has been argued that the subsequent proceeding was for review of the earlier decision of DC, and was not maintainable as the 2003 Control Order did not vest in DC any power to review his own decision. Referring to the opinion of the DC in the communication of 6 November 2006, it has been argued that the subsequent proceeding was for review of the earlier decision of DC, and was not maintainable as the 2003 Control Order did not vest in DC any power to review his own decision. In the case of R.R. Verma (supra), power of the Central Government to review their decision passed under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules was examined. It was held in this judgment that the principle of law that power to review must be specifically conferred on an authority for its exercise did not extend to decisions purely administrative in nature, but applied to a quasi-judicial authority. In the case of K. R. Deb Vs. Collector, Central Excise, Shillong (supra) dispute arose out of a departmental enquiry. In a disciplinary proceeding against a central excise official, the enquiry officer found the charge against him to be not proved. The departmental authority directed inquiry to be conducted afresh against him by another officer, not being satisfied with the report of the enquiry. In the second enquiry, charge against the delinquent officer was found to have been proved. Considering the relevant provisions of the Central Civil Services (Classification, Control and Appeal) Rules, the Supreme Court found that there was provision for one enquiry only, and held:- “It seems to us that Rule 15, on the fact of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.” The case of Debabrata Tripathy (supra) relates to initiation of suo motu proceeding by a Revenue Officer under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953. The Disciplinary authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9.” The case of Debabrata Tripathy (supra) relates to initiation of suo motu proceeding by a Revenue Officer under Section 44(2a) of the West Bengal Estates Acquisition Act, 1953. Questions arose in this proceeding as to whether the petitioners were governed by the Mitakshara school of Hindu law or not and whether the subject-property was ancestral property or not. The revenue officer in that case had earlier decided that the concerned family was governed by the Mitakshara school, in exercise of the same statutory power. Initiation of proceeding for the second time on the same question was held to be impermissible, applying the principle of res judicata. In S. K. Sen Vs. Dir. Govt. Of India (supra), it has been held that a second enquiry is not permissible in law on identical allegations, when the disciplinary authority decides the allegations on merit. 23. In the factual context of this case, in my view the notice to show cause did not really seek to commence a re-enquiry, after final decision was taken in the first enquiry. Substance of allegations against the petitioner and MH is that the firm of which they were partners was reconstituted, and the said fact was not brought to the notice of the authorities. In his report of 6 November 2006, the DC informed the DDPS that the agreement and licence were issued in favour of the petitioner and MH as partners of Damodar Enterprise, and no application was received for inclusion of any other partner in the licence. Sk. Ajimuddin was found to be an outsider, unknown to the office of the DC. But the question as to whether there was any violation of condition of licence by introducing any partner to the business of distributorship was not addressed to in that memorandum. The subject of the proceeding under challenge in this writ petition is non-disclosure of induction of new partners by reconstitution of the firm. This question was not examined earlier. I do not accept contention of the intevenor that the memorandum dated 6 November 2006 was a mere interdepartmental circular. The ratio of the decision of the Supreme Court in the case of Vartak Labour Union (supra) is not directly applicable in this proceeding. This question was not examined earlier. I do not accept contention of the intevenor that the memorandum dated 6 November 2006 was a mere interdepartmental circular. The ratio of the decision of the Supreme Court in the case of Vartak Labour Union (supra) is not directly applicable in this proceeding. But in my opinion, the earlier enquiry was not properly conducted, and did not address the issue of reconstitution of the firm, so as to foreclose the possibility of any further investigation on the question as to whether unauthorized persons were taking part in the business of distributorship being carried on by the petitioner and MH. That issue was not examined, as it appears from the materials disclosed before me. It was also submitted on behalf of the petitioner that the decision of DC reflected in the memorandum dated 6 November 2006 had attained finality, not being challenged by the intervenor. But again from the materials disclosed, it does not appear that there was communication of the said decision to the intervenor. To that extent, the decision remained an inter-office communication, not formally disclosed to the intervenor so that he could challenge that memorandum, if he felt aggrieved by it. 24. Next question arises for determination in this proceeding is as to whether the second enquiry was properly initiated or not. Case of the petitioner is that the DC has no jurisdiction to issue a notice to show cause, and the impugned notice ought to be invalidated on the ground of lack of jurisdiction on the part of DC lacked jurisdiction to issue such notice. 25. As per clause 26 of the Control Order, it is the jurisdiction of the SDC to issue notice to show cause in the event of detection of any discrepancy committed or for violation of any order and or of any condition of appointment or licence. Upon obtaining explanation from the errant distributor, the SDC is required to forward the explanation with his remarks to the District Controller and thereafter the proceeding is required to be conducted by the District Controller on giving opportunity of hearing. Clause 26 of the Control Order provides:- “26. Upon obtaining explanation from the errant distributor, the SDC is required to forward the explanation with his remarks to the District Controller and thereafter the proceeding is required to be conducted by the District Controller on giving opportunity of hearing. Clause 26 of the Control Order provides:- “26. Procedure for dealing with the irregularity of distribution – (a) Every distributor shall abide by the instructions as may be issued from time to time by an authority not below the rank of an Inspector working in the Department of Food and Supplies. He shall also abide by the terms and conditions of the appointment and licence as may be issued to him. (b) In the event of detecting any discrepancy of commodities or for violation of any order as may be issued by the competent authority and/or violation of any condition of appointment and licence the Sub- Divisional Controller, Department of Food and Supplies, shall issue a notice of show cause to the distributor asking for an explanation of the irregularity committed by the distributor, within 15 days from the date of detection of irregularity and/or any other misconduct and may also place the licence under suspension with the approval of the District Controller, Department of Food and Supplies till the disposal of the proceedings as may be drawn against the said distributor. (c) Upon receipt of the explanation as may be submitted by the distributor against the notice of show cause served upon by the Sub- Divisional Controller shall forward the said explanation with the remarks to the District Controller, Department of Food and Supplies, within 16 days from the date of receipt of such explanation. The District Controller, Department of Food and Supplies, after giving an opportunity of hearing to the distributor shall dispose of the proceedings within one month from the date of receipt of communication from the Sub-Divisional Controller, Department of Food and Supplies, The District Controller, Department of Food and Supplies, in course of disposal of the proceedings, may terminate the license and appointment issued to the distributor or may forfeit the security deposited by the distributor or may reduce the number of dealer attached with the said distributor. In the event of termination of license, the security deposit shall stand automatically forfeited to the state.” 26. In the event of termination of license, the security deposit shall stand automatically forfeited to the state.” 26. On behalf of the state respondents, it has been contended that the notice to show cause was issued in discharge of power by the District Controller vested in him under Clause 23 of the Control Order, dealing with the question of renewal. Clause 23 of the Control Order stipulates:- “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 Public Distribution System in a particular area, the vacancy is to be declared with the approval of the Regional Deputy Director, The Sub-Divisional Controller, Department of Food and Supplies, shall seek an approval of the Regional Deputy Director through the concerned District Controller, Department of Food and Supplies, and on obtaining approval, shall declare such vacancy through public notification/advertisement. (ii) The applications, as may be received from the bonafide citizen of the State for appointment of distributor against a particular vacancy, shall be enquired into by the Sub-Divisional Controller, Department of Food and Supplies, within 15 days from the date of receipt of such applications and the enquiry report along with the recommendation of the Sub-Divisional Controller, Department of Food and Supplies shall be sent to the District Controller, Department of Food and Supplies within 10 days from the date of completion of enquiry. After having such report, the District Controller, Department of Food and Supplies shall send it to the Zilla Parishad along with his recommendation and the Zilla Parishad shall forward the same to the Regional Deputy Director for approval. (iii) If the Regional Deputy Director does not agree with the recommendation made by the District Controller or the Zilla Parishad, as the case may be, he shall refer the matter to the District Magistrate for his views and the views of the District Magistrate shall be final. (iii) If the Regional Deputy Director does not agree with the recommendation made by the District Controller or the Zilla Parishad, as the case may be, he shall refer the matter to the District Magistrate for his views and the views of the District Magistrate shall be final. After having approval from the Regional Deputy Director or District Magistrate, as the case may be, the District Controller, Department of Food and Supplies shall arrange for issue of appointment letter to the selected distributors within 15 days from the date of receipt of the said approval and shall arrange for issue of licence against an application made by the appointed distributor, in Form C. the distributor so appointed shall have to deposit a licence fee of Rs.500/- and the licence shall remain valid for two years. Thereafter, the licence shall be required to be renewed every year against a fee of Rs.200/-as may be deposited by the distributor along with the application for renewal of licence within a period of validity of licence. Besides the licence fee, the distributor shall be required to furnish a security deposit of Rs.10,000/- in the form of National Savings Certificate, Krishan Vikash Patra etc. pledged in favor of the Governor of West Bengal. (iv) While appointing a distributor, the concerned authority shall take into consideration the volume of business, number of Dealers to be tagged with the distributor and other factors as may be required to be examined in the interest of Public Distribution System.” In exercise of power under the aforesaid provision of the Control Order, by a Memorandum bearing no. 893 FMR/11 S-5/2004 dated 27 October 2005, the District Controllers were authorized to effect renewal of licence of the distributors. I have referred to this memorandum in earlier part of this judgment. 27. Renewal, under normal circumstances constitutes ministerial act which automatically takes effect on furnishing of appropriate application accompanied by prescribed fees, in the absence of any further requirement for enquiry specified in the statute. In Clause 23 of the Control Order, no such additional requirement has been prescribed. The reason for which renewal has been held up in the case of petitioner, as it transpired in course of hearing, is breach of a condition of licence. The Control Order, in clause 26 specifies the manner in which such irregularity shall be enquired into. In Clause 23 of the Control Order, no such additional requirement has been prescribed. The reason for which renewal has been held up in the case of petitioner, as it transpired in course of hearing, is breach of a condition of licence. The Control Order, in clause 26 specifies the manner in which such irregularity shall be enquired into. Since there is specific provision in the Control Order prescribing the manner in which an enquiry relating to allegation against an distributor shall be conducted, in my opinion a different authority while discharging his duties under another provision of the statute cannot exercise the same power, sidestepping the procedure mandated by the statute, projecting such exercise of power as ancillary to his power for renewal. In such a situation, the enquiry would assume the character of an enquiry into irregularities as contemplated in clause 26, and has to be conducted in the manner prescribed therein. By this notice to show-cause, the DC was really not enquiring into the question of renewal, but on the question as to whether the petitioner had violated the provision of Clause 11 of the condition of licence. 28. It is true that under clause 26 of the Control Order also, it was the DC who was to conduct the hearing. The SDC, after issuing the notice to show cause, has power only to make his recommendation, and the DC is to consider such explanation of the distributor and recommendation of the SDC and come to his own finding. Since the DC was the ultimate authority to come to a finding on the allegation of violation of condition of licence, the action of the DC was sought to be justified on the ground of being a mere irregularity, not being fatal to the proceeding. The judgments of the Supreme Court in the cases of The State Bank of Punjab Vs. Shamlal Murari ( AIR 1976 SC 1177 ) and State Bank of Patiala Vs. S. K. Sharma (AIR 1996 SC 16669) were cited on behalf of the intervenor to sustain the notice, arguing that it was a mere procedural irregularity not having occasioned any prejudice to the petitioner. 29. The Control Order prescribes that in relation to an allegation of violation of condition of licence, the SDC is required to issue the notice to show cause. 29. The Control Order prescribes that in relation to an allegation of violation of condition of licence, the SDC is required to issue the notice to show cause. This implies that there should be prima facie satisfaction on the part of the SDC that there has been such violation, and then only notice seeking explanation shall be issued. Explanation is also required to be given to the SDC. He is to apply his mind over the explanation, give his own comments. The DC must have comments of the SDC before deciding the issue finally, upon giving opportunity of hearing to the distributor. This is the prescription of the Control Order. Deviation from this course ex-facie would be without the authority of law, being contrary to the provisions of the statue. Any step taken in violation of the statutory provision, particularly where there is overtaking on the part of the authorities in the decision making hierarchy, cannot be protected as being mere irregularity. In my opinion, it would be impermissible to legitimize an action on the part of an authority in initiating a proceeding which the statute mandates another authority to initiate on the ground that such action would cause no prejudice to the person against whom such action is initiated. Such violation of statute would be implicitly prejudicial to the petitioner, as every citizen of this country is entitled to be dealt with in accordance with law before being subjected to any enquiry which would entail penal measure as a consequence thereof. I accordingly find that such show cause notice has been issued by DC without having jurisdiction to do so, and no further step ought to be taken in pursuance of the same. 30. Two other points were also argued before me, which I shall discuss now. It was submitted on behalf of the petitioner that the condition of licence was not violated by him as the intervenor was never involved in their business of distributorship undertaken in terms of the agreement at the initial stage, followed by licence issued under the Control Order. It was further urged on his behalf that in any event, the clause postulating automatic invalidation of licence in case of reconstitution of the firm was incorporated only after the 2003 Control Order became operational. It was further urged on his behalf that in any event, the clause postulating automatic invalidation of licence in case of reconstitution of the firm was incorporated only after the 2003 Control Order became operational. So far as the complaint of the intervenor is concerned, changes in the composition of the firm, if any, took place before the 2003 Control Order came into existence, and no violation of the condition of licence had taken place thereafter. 31. From the copy of the licence, I find that the same was issued in favour of the petitioner and MH as joint proprietors. I wanted to ascertain as to whether the licence was issued to them as joint-owners of a firm, or as partners, and I had directed the DDPS to clarify the policy of the department on this point. An affidavit has been filed by Joydeb Jana, being the DDPS, affirmed on 17 August 2009, explaining that such licence was issued in favour of the partnership firm only, disclosing the names of the partners. But this issue was clarified by the petitioner himself and in the pleadings he has referred to himself and MH as joint partners of the firm Damodar Enterprise. On behalf of the petitioner, business carried on by him and MH as distributor under the Control Order is sought to be segregated from other business, and it is submitted that the said business of distribution never involved the intervenor, and he cannot compel the food and supplies department to allow him to act as a licencee. On this point, I do not think the Writ Court would be the proper forum for adjudication. Various factual issues are required to be determined to arrive at final conclusion on these issues, and I choose not to give a decision on the point as to whether there was any violation of the Control Order or the conditions of licence by the petitioner and MH or not, vis-à-vis the allegations made in the impugned notice to show cause. It would be for the appropriate forum to adjudicate on such issue, should occasion arise. 32. I accept the argument of the petitioner that the intervenor cannot implement a partnership agreement by making complaint before the food and supplies authorities. In the event it is found that Sk. It would be for the appropriate forum to adjudicate on such issue, should occasion arise. 32. I accept the argument of the petitioner that the intervenor cannot implement a partnership agreement by making complaint before the food and supplies authorities. In the event it is found that Sk. Ajimuddin was brought into the distributorship business of essential commodities, there would be no question of legitimizing his entry by endorsing his name on the licence. The authorities would have to decide then as to whether the licence shall be retained or not. To that extent, claim of the intervenor cannot be entertained. But if through his complaint, certain irregularities come to the notice of the authorities, then it would be permissible to initiate an enquiry in the manner prescribed in the Control Order. 33. In these circumstances, I quash the impugned notices dated 4 and 20 April 2007, copies of which have been marked “P5” and “P7” to the writ petition as I am of opinion that the District Controller had no jurisdiction to issue such notice. The appropriate authority under the 2003 Control Order however shall be at liberty to institute a proceeding afresh, if such authority is of prima facie opinion that there has been any violation of the provisions of the Control Order or any condition stipulated therein. 34. As regards the application for sanction filed by the petitioner (G.A. No.1882 of 2007), I do not find that any case has been made out for grant of sanction for prosecution by this Court. The petitioner has himself disclosed before this Court that the licence was given to him and MH as joint partners. The applicant shall be at liberty to apply before the appropriate forum if he is so advised with his allegations of commission of any penal offence. This application, in any event, was not seriously pressed at the time of hearing. This application (G.A. No. 1882 of 2007) is accordingly dismissed. 35. The writ petition is allowed in the above terms. 36. There shall, however, be no order as to costs. 37. Urgent Photostat certified copy of this judgment be supplied to the learned Advocates for the parties, if applied for with necessary formalities as expeditiously as possible.