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2014 DIGILAW 685 (ORI)

Nrusingha Charan Sahani v. State of Orissa

2014-10-20

A.K.RATH, AMITAVA ROY

body2014
JUDGMENT Dr. A.K. RATH, J. : In this writ application under Article 226 of the Constitution, the petitioner has challenged, inter alia, the order dated 2.8.2012 passed by the Collector an District Magistrate, Jagatsinghpur vide Annexure-6 blacklisting him and forfeiting 50% of his security deposit. 2.Adumbrated in brief, the case of the petitioner is that the Collector, Jagatsinghpur, opposite party No.1 had appointed the petitioner as a contractor for handling and transporting the food gains from Rice Receiving Centre-cum-Departmental Storage Centre (in short ‘RRC-Cum-DSC’), Krushnachandrapur, Kujanga to the retail centre, Kujanga Block on 3.3.2012 vide Annexure-1. Thereafter, an agreement was entered into. While the matter stood thus, a show cause was issued to him by the District Manager, Orissa State Civil Supplies Corporation Ltd., Jagatsinghpur, opposite party No.2 to blacklist him and forfeit the security money for not submitting the acceptable note of the gate pass to the concerned RRC-cum-DSC in-charge against lifting of 71 quintals of APL wheat (in 143 bags). He submitted the show cause vide Annexure-3. Without considering the matter in its proper perspective, the opposite party No.1 by order dated 2.8.2012 vide Annexure-6 blacklisted him for a period of two years for violating the terms and conditions of the contract as per the clause 13(ii) & (iii) & 18 (xxiii) of the H & T Contractor agreement and forfeited 50% of security deposit amounting to Rs.2,50,000.00. By the said order, the second lowest bidder of the tender for H & T Contractor (Level-II) of Kujanga Block was allowed to function as H & T Contractor. 3.Pursuant to issuance of notice, a detailed counter affidavit has been filed by opposite party No.1. Case of the opposite party No.1 is that the petitioner had been appointed as a handling and transporting contractor Level-II under Kujanga Block through tender process to deal with PDS commodities. He executed an agreement, which was valid up to 31.03.2013. As per the Orissa State Civil Supplies Corporation Ltd. Head Office rules and guidelines, his primary duty was to transport food grains from RRC-cum-DSC, Krushnachandrapur of Kujanga Block to different retail points of the said Block. On 20.7.2012, the Marketing Inspector, Kujanga Block had lodged an F.I.R. regarding misappropriation of 71 quintals APL wheat by the petitioner. On the same day, the Procurement Inspector, in-charge of RRC-Cum-DSC, Krushnachandrapur had also submitted a report regarding non-submission of acceptance note by the petitioner. On 20.7.2012, the Marketing Inspector, Kujanga Block had lodged an F.I.R. regarding misappropriation of 71 quintals APL wheat by the petitioner. On the same day, the Procurement Inspector, in-charge of RRC-Cum-DSC, Krushnachandrapur had also submitted a report regarding non-submission of acceptance note by the petitioner. It is further stated that the petitioner had been handed over a stock of 71 quintals of APL wheat from RRC-cum-DSC, Krushnachandrapur, Kujanga on 18.7.2012 in three phases vide gate pass Nos.5170, 5171 and 5176 in between 10.30 A.M. to 12.45 P.M. through the vehicle bearing registration Nos.OR-05W-7353, OR-05AV-0953 and OR-05AK-9053 respectively to delivery the same to Shri Bholanath Mallick, PDS retailer of Bariha under Gopiakuda G.P. of Kujanga Block. But then he had not submitted the acceptance note against the above mentioned three gate passes duly acknowledged by Sri Mallick to the in-charge of RRC-cum-DSC till the time of verification by the District Enforcement Squad headed by the CSO, Jagatsinghpur, who visited the said RRC-cum-DSC on 18.7.2012 at about 4.00 P.M.. During the checking of the retail centre of Sri Mallick, it was found that his retail center was closed. Thereafter the squad proceeded to Gopiakuda G.P. godown, where they found that the wheat was stored in the G.P. godown. On being asked, the G.P. Secretary had stated before the Executive Magistrate that the G.P. had neither obtained any PDS retail license to deal with essential commodities from the competent authority, nor he had directly any H & T Contractor to unload the stock in the G.P. godown. Therefore, the wheat available in the G.P. godown had been seized by the squad in presence of the Executive Magistrate on 19.7.2012. It is further stated that the petitioner had been issued with a show cause notice vide office letter dated 20.7.2012. In reply, he had denied the charges. He stated that he had unloaded the APL wheat at the G.P. godown as per the telephonic direction of the retailer and the acceptance note was signed by the nephew of Sri Mallick, retailer on 19.7.2012. Further case of opposite party No.1 is that basing on the F.I.R. submitted by the Marketing Inspector, Kujanga and taking into account the rules and guidelines issued by the Corporation and the terms and conditions of the agreement order under Annexure-6 was passed. 4.Heard Mr. B. Pattnaik, learned counsel for the petitioner and Mr. Further case of opposite party No.1 is that basing on the F.I.R. submitted by the Marketing Inspector, Kujanga and taking into account the rules and guidelines issued by the Corporation and the terms and conditions of the agreement order under Annexure-6 was passed. 4.Heard Mr. B. Pattnaik, learned counsel for the petitioner and Mr. J. Pattnaik, learned Additional Government Advocate for the State. 5.A formant of the agreement entered into between the petitioner and the Orissa State Civil Supplies Corporation Ltd. has been annexed as Annexure-A/1 to the counter affidavit. Clause 13(ii) of the said agreement provides that the non-performing/defaulting contractor may be suspended/banned for trade relation/blacklisted for a period up to 2 years based on the gravity of nonperformance/default of the contractor, by the District Manager whose decision in the matter shall be final and binding. District Manager has been defined in Clause-1 of the agreement; which means the District Manager of the Corporation working in Revenue District or any authorized officer to act on his behalf for a specific work. Admittedly, a show cause notice was issued by the District Manager, Orissa State Civil Supplies Corporation, Jagastsinghpur vide Annexure-2, but then the petitioner made a representation to the Collector-cum-District Magistrate, Jagatsinghpur, opposite party No.1 whereafter the impugned order was passed by the Collector and District Magistrate, Jagatsinghpur, opposite party No.1. 6.In the celebrated judgment in Gullapalli Nageswara Rao and others v. Andhra Pradesh State Road Transport Corporation and another, AIR 1959 SC 308 , the Constitution Bench of the apex Court held that personal hearing enables the authority concerned to watch the demeanour of the witnesses and clear up his doubts during the course of the arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality. After survey of the earlier decisions, the apex Court in the case of Union of India and others v. Shiv Raj and others, AIR 2014 Supreme Court 2242, in paragraph-15 of the judgment held as follows :- “15. If one person hears and another decides, then personal hearing becomes an empty formality. After survey of the earlier decisions, the apex Court in the case of Union of India and others v. Shiv Raj and others, AIR 2014 Supreme Court 2242, in paragraph-15 of the judgment held as follows :- “15. In view of the above, the law on the issue can be summarised to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice.” The ratio of the aforesaid judgments applies with full force to the facts and circumstances of the present case. 7.On taking a holistic view of the matter, we are on ad idem that opposite party No.1 committed a manifest illegality and impropriety in passing the impugned order. Consequently, the writ petition is allowed. The matter is remitted back to the C.S.O.-Cum-District Manager, Orissa State Civil Supplies Corporation Ltd., Jagatsinghpur, opposite party No.2, who shall do well to pass a reasoned order after going through the reply to show cause submitted by the petitioner and other materials available on record within a period of one month from the date of production of certified copy of this order. CHIEF JUSTICE I agree. Petition allowed.