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2015 DIGILAW 920 (CAL)

Shanti Devi Agarwal v. State of West Bengal

2015-11-19

SUBRATA TALUKDAR

body2015
JUDGMENT : Subrata Talukdar, J. The short point that this Court is required to answer in this writ petition is whether the order impugned dated 28th April, 2015 passed by the Director of Rationing, Government of West Bengal (for short DOR) is legally sustainable or not. By the order impugned the DOR refused to appoint the petitioner no.2 as a Fair Price Shop Dealer (for short FPS) on the ground that the petitioner was not a person of unimpeachable character and integrity. 2. The DOR took notice of the fact that a criminal case being CGR No. 2506 of 2002 is pending against the petitioner no.2 under Sections 420, 468 and 411 of the Indian Penal Code (for short IPC). Further noticing that each of the three Sections of the IPC as noted above relate to serious offences of cheating, forgery and dishonestly receiving stolen property which are all cognizable and non-bailable, the DOR came to the conclusion that it is necessary for the appointing authority to consider whether the appointee has acceptable moral antecedents. 3. Sri Debabrata Saha Roy, Ld. Counsel for the writ petitioners strongly submits that by order dated 12th September, 2014 in WP 19578(W) of 2011 a Hon’ble Single Bench of this Court was pleased to direct the competent respondent authority to consider the claim of the present petitioners for appointment on compassionate grounds to the FPS dealership of the original dealer, since deceased, under the provisions of the West Bengal Public Distribution (Maintenance & Control) Control Order, 2003 (for short the 2003 Control Order).. Therefore, Sri Saha Roy submits that the DOR patently fell into error by revisiting the claim of the petitioner for appointment on compassionate grounds on the platform of the West Bengal Public Distribution System (Maintenance and Supply) Control Order, 2013 (for short the 2013 Control Order) when, the application of such order stood specifically excluded by the order of this Court dated 12th September, 2014 (supra). 4. Also arguing that while applying the 2003 Control Order in respect of the appointment of the petitioner no.2, Sri Saha Roy points out that the DOR was required to take notice of the Memo dated 10th April, 1991 issued by the Deputy Director (S), Directorate of District Distribution, Procurement and Supply (for short DDP & S). 4. Also arguing that while applying the 2003 Control Order in respect of the appointment of the petitioner no.2, Sri Saha Roy points out that the DOR was required to take notice of the Memo dated 10th April, 1991 issued by the Deputy Director (S), Directorate of District Distribution, Procurement and Supply (for short DDP & S). By the Memo of 10th April, 1991 it has been made clear that the mere charge of involvement of the applicant or the fact that a criminal case against the applicant is pending may not be a ground for refusing to grant/renew a license. A license may be refused to be granted/renewed if the applicant is found convicted of an offence relating to essential commodities or, if such appointment is likely to impede the supply and distribution of essential commodities by the appointee. 5. On the strength of the above noted Memo dated 10th April, 1991 Sri Saha Roy further submits that the petitioner is merely facing criminal proceedings in respect of CGR No. 2506 of 2002 (supra). Reading the Memo dated 10th April, 1991 (supra). In the context of the fundamental canon of criminal law that an accused must be presumed to be innocent until proved guilty, Sri Saha Roy argues that the DOR committed an error of law by refusing the grant of FPS licence to the petitioner no.2 on the surmise that the latter lacked good character and integrity. 6. Sri Saha Roy submits that the DOR travelled beyond jurisdiction by trying to anticipate the conclusion of the pending criminal proceedings against the petitioner no.2 and to pass a final opinion thereon. In support of his submissions Sri Saha Roy relies upon the decision in WP 26255(W) of 2013 dated 11th September, 2013 passed by a Hon’ble Single Bench as well as the order of a Hon’ble Division Bench of this Court dated 20th of February, 2015 in FMA 450 of 2015. 7. Per contra, Sri Susovan Sengupta, Ld. Senior Government Advocate submits that the DOR was within his powers to consider whether the petitioner no.2 was suitable in all respects to be appointed as a dealer. In this connection Sri Sengupta relies upon a Memo dated 3rd July, 1985 marked Annexure R-3 to the affidavit-in-opposition filed on behalf of the State-respondents. 7. Per contra, Sri Susovan Sengupta, Ld. Senior Government Advocate submits that the DOR was within his powers to consider whether the petitioner no.2 was suitable in all respects to be appointed as a dealer. In this connection Sri Sengupta relies upon a Memo dated 3rd July, 1985 marked Annexure R-3 to the affidavit-in-opposition filed on behalf of the State-respondents. Sri Sengupta points out that the Memo dated 3rd July, 1985 issued by the DOR makes it clear that in the case of appointment of a legal heir to the dealership of the deceased original dealer it is required to be ascertained that the proposed appointee is “otherwise found suitable in all respects”. 8. Sri Sengupta therefore points out that the DOR was competent to ascertain the local reputation of the petitioner no.2 for finding out whether he was suitable in all respects to be appointed to the dealership. Also relying upon a Memo dated 29th January, 1975 of the DOR on the subject of change of ownership of ration shop, Sri Sengupta submits that it has been highlighted at point no.6 of the said Memo dated 29th January, 1975 that it is necessary to ascertain upon prior enquiry whether the local reputation of the proposed appointee is good. 9. Sri Sengupta further submits that by a Notification dated 3rd June, 2011 it has been again underscored by the DOR that the proposed appointee should not be involved in any criminal offence involving moral turpitude or any offence under the Essential Commodities Act or, any police case is pending against such appointee. 10. On the strength of all the above noted Memos Sri Sengupta submits that the DOR was well within his jurisdiction to enquire into the nature of the pending criminal case against the petitioner no.2 and correctly arrived at the conclusion that the seriousness of the charges do not warrant that the petitioner can be granted the licence to distribute essential commodities under the State. 11. Having heard the parties and considering the materials on record this Court is first required to examine whether the DOR was right in revisiting the application of the second petitioner on the strength of the provisions of the 2013 Control Order. 11. Having heard the parties and considering the materials on record this Court is first required to examine whether the DOR was right in revisiting the application of the second petitioner on the strength of the provisions of the 2013 Control Order. This Court is of the considered view that having regard to the clear order of the Hon’ble Single Bench dated 12th of September, 2014 (supra) directing consideration under the 2003 Control Order, the DOR had no basis to revisit the claim of the petitioner no.2 in the context of the provisions of the 2013 Control Order. Therefore, to the above extent the order of the DOR dated 28th April, 2015 cannot be sustained. 12. With regard to the jurisdiction of the DOR to consider the antecedents of the petitioner no.2 having regard to the pendency of the criminal case on charges of cheating, forgery and dishonestly receiving stolen property, this Court is of the considered view that while the DOR is not entitled to prejudge the outcome of the pending criminal proceedings, at the same time it cannot also be denied that, as the appointing authority, the DOR is not denuded of his jurisdiction to enquire into the antecedents of the petitioner no.2. 13. This Court notices that in contradistinction to the judgment of the Hon’ble Single Bench In Re: Basona Das (supra) and the Hon’ble Division Bench In Re: FMA 450 of 2015, the DOR has relied upon the decision reported in 1996 (11) SCC 605 in the matter of Delhi Administration through its Chief Secretary & Ors. vs. Sushil Kumar. Paragraph 3 of the said decision reads as follows:- “3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6-9-1995 in OA No. 1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18-12-1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.” 14. This Court is also required to notice another decision of the Hon’ble Apex Court reported in 2011 (10) SCC 186 in the matter of State of West Bengal & Ors. vs. Sk. Nazrul Islam. Paragraph 5 of the said decision reads as follows:- “5. This Court is also required to notice another decision of the Hon’ble Apex Court reported in 2011 (10) SCC 186 in the matter of State of West Bengal & Ors. vs. Sk. Nazrul Islam. Paragraph 5 of the said decision reads as follows:- “5. We have heard the learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596 IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/427/596 IPC, he cannot possibly be held to be suitable for appointment to the post of constable.” 15. This Court further notices that the DOR also took notice of a decision of the Hon’ble Division Bench of this Court in a Public Interest Litigation being WP 22311(W) of 2011 which, inter alia, came to the conclusion that having regard to the nature (emphasis supplied) of the criminal charges against the dealer it is prudent that in public interest such dealer should not be entrusted with the responsibility of handling ration articles. 16. This Court must also notice that under the Memos dated 29th January, 1975, 3rd July, 1985 and 3rd June, 2011 (supra), the DOR retained his discretion to take notice of the local antecedents/reputation of the prospective appointee. In Reliance Airport Developers (P) Ltd. vs. Airports Authority of India reported in 2006 (10) SCC 1 , the Hon’ble Apex Court, inter alia, held as follows:- “30. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection: a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. 31. 31. The word “discretion” standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or basic; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care, therefore, where the legislature concedes discretion it also imposes a heavy responsibility.” 17. The great Chinese thinker, Confucius, is said to have opined on similar terms when he commented that the “superior man” (read competent Authority) can be put “in an important position with large discretionary powers, but you cannot give him a nice little job”. On the contrary “you can give an inferior man a nice little job, but you cannot put him in an important position with great discretionary powers.” (Reference: ‘The Wisdom of Confucius’: by L. Yutang; Random House (1938). 18. Therefore, on an anxious consideration of all the above noted factual and legal issues this Court, although being conscious of the fundamental canon of criminal jurisprudence that an accused must be presumed innocent until proved guilty, cannot also lose sight of the fact that the charges against the petitioner no.2 are of a nature which rightly did not inspire the confidence of the DOR to confer the appointment. This Court is therefore of the view that having regard to the particular facts of this case the DOR correctly exercised jurisdiction in refusing the appointment to the petitioner no.2. 19. WP 10312(W) of 2015 stands accordingly dismissed. 20. There will be, however, no order as to costs. Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.