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2015 DIGILAW 411 (CAL)

Mansur Haque v. State of West Bengal

2015-05-08

SAMAPTI CHATTERJEE

body2015
JUDGMENT : Samapti Chatterjee, J. Assailing the termination order dated 8th October, 2010 passed by the Sub-Divisional Controller, Food & Supplies, Burdwan Sadar, Government of West Bengal the petitioner filed the instant writ petition. 2. On 25th May, 1987 the petitioner was appointed as M.R. Dealer of Jamar Village, District-Burdwan and since then petitioner has been carrying on the said dealership business strictly in accordance with the terms and conditions of the agreement executed between the petitioner and the Government of West Bengal. Surprisingly on 22nd November, 2004 show-cause notice was issued by the respondent no.3 herein allegedly mentioning that from a report submitted by the inspecting squad on the basis of the surprise visit to the shop of the petitioner on 9th October, 2004 at 11 a.m. certain irregularities were found by the inspector. As a result of which the petitioner was asked to give answer to the show-cause notice within seven days. It is also submitted that no inspection report accompanied the show-cause notice though it is mandatory on the part of the authority to supply the copies of the documents relied on by them to the person against whom show-cause notice was issued. However on 25th November, 2004 the petitioner submitted reply to the show-cause notice although documents were not provided. As per the direction on 21st December, 2004 the petitioner attended the office of the Sub-Divisional Controller on 10.30 a.m.. Unfortunately no hearing took place. Not only that no witness was produced and further the petitioner was not allowed to inspect the alleged report of the inspecting team and he was not even allowed to cross-examined the officer who visited the M.R. shop of the petitioner. Even highlighting such irregularities before the authority the petitioner was served with an order of suspension dated 19th January, 2005 for indefinite period issued by the respondent no.5 herein. Alleging the order of suspension being clear violation of Paragraph 21 of the West Bengal Public Distribution System (Maintenance & Control) order, 2003 the petitioner filed a writ petition being W.P. No.1389 (W) of 2005 challenging the said order of suspension dated 19th January, 2005. Alleging the order of suspension being clear violation of Paragraph 21 of the West Bengal Public Distribution System (Maintenance & Control) order, 2003 the petitioner filed a writ petition being W.P. No.1389 (W) of 2005 challenging the said order of suspension dated 19th January, 2005. Since the said matter was not disposed of, the petitioner filed another writ petition being W.P. No.12856 (W) of 2005 praying inter alia for quashing of the show cause proceedings and also for quashing of suspension order dated 19th January, 2005 on the ground inter alia that show cause proceedings was not completed within the period of three months as prescribed under Para 21 of West Bengal Public Distribution System (Maintenance & Control) order 2003. This writ petition was allowed on 2nd August, 2005 by quashing the departmental proceedings drawn against the petitioner on the basis of the show cause notice dated 22nd November, 2004 and also by quashing the suspension order dated 19th January, 2005. Thereafter the petitioner was allowed to resume his M.R. Dealership business with effect from 15th August, 2005. Surprisingly, the then Secretary of the private respondent filed the public interest litigation before this Hon'ble Court though it was withdrawn subsequently as it was observed by the Hon'ble Division Bench that the same is not maintainable. The said person hereinafter filed an appeal against the judgment and order dated 2nd August, 2005 being MAT No.3363 of 2005. The Hon'ble Division Bench on 12th April, 2006 disposed of the said appeal inter alia holding that the period described under Para 21 of the said control order of 2003 is not mandatory so far as disposal of the show cause proceeding is concerned. But it was also held by the Hon'ble Division Bench that period of five months as prescribed in the said control order should be considered as mandatory so far as the continuation of suspension in connection with the show cause proceedings and the suspension of the dealer must come to an end after expiry of three months if in the meantime show cause proceedings is not completed. Accordingly by the said order the authority was directed to complete the entire proceedings as early as possible but definitely by 15th July, 2006. Accordingly by the said order the authority was directed to complete the entire proceedings as early as possible but definitely by 15th July, 2006. It is submitted that pursuant to the said Division bench order the Sub-Divisional Controller on 30th May, 2006 asked the petitioner to appear before the said authority on 6th June, 2006 for personal hearing in connection with the show cause notice dated 22nd November, 2004, on the said date of hearing the petitioner submitted a written submission ventilating all irregularities committed by the authorities initiating the said show cause proceedings. After the said hearing on 22nd June, 2006 the Sub-Divisional Controller in most clandestine, vindictive and arbitrary manner terminated the dealership of the petitioner. Feeling aggrieved by this said order of termination the petitioner filed a writ petition being W.P. No. 17111 (W) of 2006. The said writ petition was ultimately disposed of by the judgment and order dated 28th July, 2009 thus granting liberty to the Sub Divisional Controller to proceed afresh and directing him to take final decisions in the said proceedings within eight weeks from the date of communication of that order after giving opportunity of hearing to the petitioner. Thereafter the petitioner vide letter dated 11th December, 2009 was asked to appear before him for completing the proceedings. The petitioner then submitted his written representation on 22nd December, 2009 though the petitioner attended the office of the respondent no.5 but no document was made available to the petitioner. No enquiry report was also furnished to the petitioner by the respondent. The petitioner was not allowed to adduce any evidence or cross examine the person who allegedly lodged the complaint and enquiry report and the name of the complainants as well as the enquiry report were also not furnished to the petitioner. Thereafter without considering the petitioner's representation the respondent authority illegally and arbitrarily terminated the petitioner's dealership on 8th January, 2010 knowing fully well that the time framed of eight weeks by this Hon'ble Court was due to expire on 9th January, 2010. Then on 12th May, 2010 the petitioner filed a contempt application before this Hon'ble Court. During pendency of this contempt application surprisingly the Sub-Divisional Controller after lapse of almost six months informed the petitioner on 24th June, 2010 that the order dated 8th January, 2010 is recalled and the authority had decided to proceed afresh. Then on 12th May, 2010 the petitioner filed a contempt application before this Hon'ble Court. During pendency of this contempt application surprisingly the Sub-Divisional Controller after lapse of almost six months informed the petitioner on 24th June, 2010 that the order dated 8th January, 2010 is recalled and the authority had decided to proceed afresh. Such being the position, the Hon'ble Court on 17th September 2010 was pleased to drop the contempt proceedings with following observations :- "It is entirely for the petitioner to decide whether he will participate in the proceedings. If he is of the view that the situation has created his right to seek a declaration that the contemnor is not entitled to proceed further, he is free to assert it before the appropriate forum in appropriate manner. But considering his assertion I cannot decide the question whether a declaration should be given that the contemnor has lost authority to proceed with the proceedings." Thereafter on 25th June, 2010 as the Sub-Divisional controller without giving a further notice to the petitioner for hearing and without considering the petitioner'' written submission arbitrarily whimsically clandestinely terminated the petitioner's dealership on 8th October, 2010. Challenging the said illegal termination the petitioner filed the instant writ petition. 3. Mr. Sagar Bandyopadhyay, learned Advocate appearing for the petitioner vehemently contended that the impugned letter of termination is bad arbitrary whimsical and very much against the Articles 14, 16, 19 (I) (g) of the Constitution of India. 4. Mr. Bandyopadhyay also contended that inspecting team allegedly visited the shop on 19th October, 2004 at 11 a.m. when shop was not open in view of the relevant Government circular. 5. Mr. Bandyopadhyay also submitted that the respondent no.5 from the beginning proceeded against the petitioner with closed mind and was pre-determined to terminate the dealership of the petitioner with the intention to allot the same to the private respondent. 6. Mr. Bandyopadhyay also contended that the allegations in the show cause notice were vague, concocted even the alleged complainant who preferred an appeal before this Hon'ble Court had themselves admitted that the procedural norms have been flouted by the respondents at the time of inspecting the said dealership shop at 11 a.m. when admittedly as per Government circular the shop would not remain open. 7. Mr. 7. Mr. Bandyopadhyay also vehemently urged that the so called termination order was passed after lapse of eight weeks as stipulated by this Hon'ble Court. 8. Mr. Bandyopadhyay also contended that after five months during pendency of the contempt petition the respondent no.5 withdrew the so called termination order on 24th June, 2010. 9. Mr. Bandyopadhyay also pointed out that in the show cause notice date mentioned was 19th October, 2004 but curiously enough in the suspension notice it was written as 18th October, 2004 instead of 19th October, 2004 reason best known to the respondent authorities. 10. Mr. Bandyopadhyay also vehemently urged that in the enquiry report it was mentioned that inspection was taken on 3.30 p.m. on 18th October, 2004 but in the show cause notice it was written that enquiry was taken at 11 a.m. on 19th October, 2004. Therefore, Mr Bandyopadhyay emphasised that the entire procedure was done unfairly and unjustly with closed mind with the intention to terminate the petitioner's dealership at any cost just to accommodate their favourite person i.e. private respondent who was one of the alleged complainants. 11. Mr. Bandyopadhyay also argued that the petitioner was only asked to fill up the question-answer form by the Sub-Divisional Controller but he was not provided any personal hearing by the said respondent. Not even the written submission submitted by the petitioner was considered by the Sub-Divisional Controller at the time of issuing the impugned termination order dated 8th October, 2010 which is very much against the natural justice and also contrary to Articles 19 (ii) (g) and 21 of the Constitution of India. 12. Mr. Bandyopadhyay also argued that the impugned termination order was passed by the Sub-Divisional Controller without assigning any reason and without giving any opportunity of hearing and also beyond the stipulated time framed by this Hon'ble Court. 13. Mr. Bandyopadhyay also contended that name of the person who conducted the so called inspection was not disclosed in the list of the witnesses. 14. Mr. Bandyopadhyay also vehemently urged that it was the obligatory on the part of the respondent authority to seek extension of time from the Hon'ble Court before passing the impugned termination order on 8th October, 2010. Bandyopadhyay also contended that name of the person who conducted the so called inspection was not disclosed in the list of the witnesses. 14. Mr. Bandyopadhyay also vehemently urged that it was the obligatory on the part of the respondent authority to seek extension of time from the Hon'ble Court before passing the impugned termination order on 8th October, 2010. As per Hon'ble Court order respondent was directed to dispose of the entire proceedings within eight weeks but the impugned termination order was passed by the respondent no.5 beyond the time stipulated by the Hon'ble Court. In support of his contention Mr. Bandyopadhyay relied on a Supreme Court decision reported in 1995 CRI. L.J. Page-1545 paragraphs 8, 9 10 and 11 (New Hope Granites v. Shri Lokanath, the Deputy Conservator of Forest, Bangalore and another) and a Division Bench Judgment of this Hon'ble Court reported in 2007 (4) CHN Page-183 Para-3 ( Sher Singh v. Union of India & Ors). In support of his further contention on the aspect of violation of natural justice Mr. Bandyopadhyay relied on a Supreme Court decision reported in (2006) 5 Supreme court Cases Page-88 Para-25 (M.V. Bijlani v. Union of India and Others) which is quoted below :- "Para-25-It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with." AIR 1963 Supreme Court Page-375 Para-3 and 9 (State of Mysore and others v. Shivabasappa Shivappa Makapur) was also cited which are quoted below:- "Para-3-The sole point for determination in this appeal therefore is whether the procedure adopted by the Deputy Superintendent of Police in admitting the statements of witnesses examined before Mr. Majumdar in evidence is opposed to the rules of natural justice. The question is one of importance, because as appears from the cased which have come before us the procedure followed by the Deputy Superintendent of Police in this case is the one followed by many tribunals exercising quasi-judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in Courts. Para-9-But in our opinion, the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statements is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party. Para-9-But in our opinion, the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statements is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for cross-examination by that party. In this view we must hold that the order dated July 5, 1956 is not liable to be set aside on the ground that the procedure followed at the inquiry by the Deputy Superintendent of Police was in violation of the rules of natural justice. It is hardly necessary to add that clause (8) of S.545 of the Bombay Police Manual cannot be held to be bad as contravening the rules of natural justice." Therefore, Mr. Bandyopadhyay finally contended that the impugned termination notice dated 8th October, 2010 arising out of show cause notice dated 27th November, 2004 should be quashed by this Hon'ble Court. 15. Mr. T.M. Siddiqui, learned Advocate appearing for the State submitted that notice for hearing was issued to the petitioner during pendency of the contempt application on 24th June, 2010. Therefore, it is not correct to suggest that no notice of hearing was issued before issuance of order of termination dated 8th October, 2010. 16. Mr. Siddiqui also contended that in spite of notice the petitioner failed to appear before the hearing. Therefore, the Sub-Divisional Controller was compelled to issue the termination notice. 17. Mr. Siddiqui also vehemently urged that there was no illegality committed by the authority at the time of issuance of termination order but was issued upon due compliance of the entire proceedings. Therefore, in conclusion, Mr. Siddiqui submitted that the impugned notice of termination does not deserve any interference by this Hon'ble Court and as such the present writ petition should be dismissed with costs by this Hon'ble Court. 18. Mr. Nandy appearing for the private respondents after adopting the submissions made by Mr. Siddiqui contended that the writ petition should be dismissed with costs by this Hon'ble Court. 19. 18. Mr. Nandy appearing for the private respondents after adopting the submissions made by Mr. Siddiqui contended that the writ petition should be dismissed with costs by this Hon'ble Court. 19. Considering the submissions advanced by the learned Advocate appearing for the parties and after meticulously perusing the records I find that there was a gross illegality committed by the Sub Divisional Controller in issuing the impugned letter of termination on 8th October, 2010 as it is evident from the order passed by this Hon'ble Court that the Hon'ble Court directed the respondent authority to dispose of the entire proceedings within eight weeks which admittedly elapsed when the Sub-Divisional Controller passed the impugned termination order dated 8th October, 2010. 20. It is an admitted fact that the official order of termination was withdrawn by the respondent authority dated 8th January, 2010 after lapse of five months of the High Court order during pendency of the contempt proceedings. 21. It is also evident from the records that in the enquiry report it is written the inspection was held at 3.30 p.m. on 18th October, 2004 but in the show cause notice it is written that the inspection was held on 19th October, 2004 at 11 a.m. which is beyond the time as prescribed by the control order, 2003. 22. It is also evident from the record at Page-86 of the writ petition that in the list of witnesses name of the respondent no.7 is appearing under Serial no.5. It is a mandatory provision under Sub Clause (II) of Clause 21 of the West Bengal Public Distribution System (Maintenance and Control) order, 2003 that after receiving reply from the dealer the Sub-Divisional Controller departmental proceedings drawn against the dealer shall have to be completed by the concerned Sub-Divisional Controller, department of Food and Supply within three months from the date of serving notice. The relevant Sub Clause II of Clause 21 of the West Bengal Public Distribution System (Maintenance and Control) order, 2003 is quoted below :- "(ii) On receiving the reply from the Dealer, the Sub-Divisional Controller, Department of Food and Supplies, shall give an opportunity of hearing to the Dealer and on recording the reasons therefor, the Sub-divisional Controller, Department of Food and Supplies may terminate the licence and appointment issued to the Dealer of forfeit the security deposit of the Dealer or may pass an order for deduction of ration cards tagged with the said Dealer. The departmental proceedings drawn against the Dealer shall have to be completed by the concerned Sub-divisional Controller, Department of Food and Supplies within three months from the date of serving notices asking for explanation." 23. In the show cause notice it is mentioned that the enquiry was held on 19th October, 2004 but in the letter of suspension it was written as 18th October, 2004. Not only that in the enquiry report it is stated that inspection was held at 3.30 p.m. on 18th October, 2004 but in the show cause notice it is written that inspection was held on 19th October at 11 a.m. (which is a closing time of the shop). 24. I cannot also ignore the fact that before issuance of the impugned termination order dated 8th October, 2010 no prior leave was granted by this Hon'ble Court to extend the time for completion of the proceedings. 25. I also cannot ignore the fact that no opportunity of hearing was granted to the petitioner before passing the impugned termination order dated 8th October, 2010. Not only that it is apparent that the written submission submitted by the petitioner was also not considered by the Sub Divisional Controller at the time of passing the impugned order dated 8th October, 2010, only considering the oral recording of question-answer form of the petitioner the impugned terminating order was mechanically passed without assigning any reason. 26. Not only that it is apparent that the written submission submitted by the petitioner was also not considered by the Sub Divisional Controller at the time of passing the impugned order dated 8th October, 2010, only considering the oral recording of question-answer form of the petitioner the impugned terminating order was mechanically passed without assigning any reason. 26. Considering the decisions report in Sings v. Union of India and Others (Supra) State of Mysore and Others (Supra) and also considering the M.V. Bijlani's Case (Supra) and New Hope Granites case (Supra) I am of the opinion that the impugned order dated 8th October, 2010 was passed in a closed and biased mind, adopting unfair procedure and without giving any opportunity of hearing to the petitioner as well as without considering the written submission of the petitioner. Therefore, the impugned order of termination as well as the show cause notice dated 22nd November, 2009 suffer from various vices and are wholly contrary to Articles 14 and 16 of the Constitution of India and also very much against the Articles 19 (I) (g) and 21 of the Constitution of India. 27. I also find and hold that the impugned termination order dated 8th October, 2010 arising out of show cause notice dated 22nd November, 2004 was issued by the Sub-Divisional Controller without assigning any reason and without following the Rules. Therefore, the impugned order dated 8th October, 2010 arising out of show cause notice dated 22nd November, 2004 cannot be sustained in the eye of law. 28. That being the position I have no hesitation to hold that the impugned order dated 8th October, 2010 passed by the Sub Divisional Controller Food and Supply, Burdwan Dardar, District-Burdwan as well as the show cause notice dated 22nd November, 2004 should be quashed and set aside. 29. Accordingly, show cause notice dated 22nd November, 2004 as well as the termination letter dated 8th October, 2010 passed by the Sub-Divisional Controller Food and Supply are hereby set aside and quashed. The consequence of this order would have been to remit the matter back to the disciplinary authority but I, however, do not intend to do specially because the show cause relates to the year 2004 and the petitioner, due to pendency of the proceedings has suffered a lot. 30. The consequence of this order would have been to remit the matter back to the disciplinary authority but I, however, do not intend to do specially because the show cause relates to the year 2004 and the petitioner, due to pendency of the proceedings has suffered a lot. 30. Therefore, respondent no.5, Sub Divisional Controller, Food and Supply, Burdwan Sadar, District-Burdwan is hereby directed to allow the petitioner to carry on business of fair price shop on the basis of his appointment letter dated 25th May, 1987 immediately from the date of communication of this order. 31. This writ petition is allowed without any order as to costs. 32. Urgent photostat certified copies if applied for, be supplied to the parties after compliance of all formalities. Later, Mr. Nandy, learned Counsel appearing for the respondent no.7, prays for stay of the operation of this order. Such prayer is considered and rejected.