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2017 DIGILAW 513 (CAL)

State of West Bengal v. G. S. N. Murty

2017-05-30

RAKESH TIWARI, SHIVAKANT PRASAD

body2017
JUDGMENT : SHIVAKANT PRASAD, J. 1. The State of West Bengal, through the Food Commissioner and Principal Secretary, Food and Supplies Department and others of the Government has preferred the instant appeal on being aggrieved and dissatisfied with the impugned judgment and order dated 27th April, 2016 passed in W.P. No. 12871(W) of 2015, assailing the orders dated 02.02.2015, 15.5.2015 and 08.6.2015 of the Director of Consumer Goods, Food & Supply Department whereby the petitioners Superior Kerosene Oil (S.K. Oil) licence was cancelled by imposition of fine. 2. The brief facts leading to the instant appeal is that respondent no. 1 M/s. G.S.N. Murty was an agent for distribution of S.K. Oil at Belda, Kharagpur Sub-Division, Paschim Medinipur District by virtue of S.K. Oil Licence No. AGT/MID(S)/59 New No. DCG-420-15, granted under the provisions of the West Bengal Kerosene Control Order, 1968. But the respondent no. 1 did not carry on the business of S.K. Oil with an unblemished record. 3. The genesis of the dispute arises in the misappropriation, lapses and discrepancies on the part of the respondent no. 1 in the lifting and supply of kerosene oil. The Director of Consumer Goods had issued a letter dated May 28, 2014, to the respondent no. 1 to submit monthly lifting and distribution status report of the S.K. Oil for the financial years from 2010-11, 2011-12, 2012-13 and 2013-14 to which reply was submitted on June 18, 2014. On scrutiny, certain discrepancies and irregularities were found regarding lifting and distribution of S.K. Oil for the period April, 2010 to March, 2014. So, the respondent was directed to submit, inter alia, (i) Order of allotments tagged to Big Dealers/ Dealers along with documentary proof that the quantity endorsed by the SCF‘S/DCFS made to him for supply was actually supplied and (ii) the names of the Big Dealers/ Dealers to whom the S.K. Oil was supplied every month.” 4. But, the respondent no.1 did not respond to the said direction of the Deputy Director of Consumer Goods vide his letter dated July 4, 2014. Therefore, a decision was taken for inspection by a team of competent inspectors and the Director of Consumer Goods by issuance of a Memo No. DCG/CON/ 195 dated August 28, 2014 in exercise of the provision of Paragraph 5(VI) of the Control Order. Therefore, a decision was taken for inspection by a team of competent inspectors and the Director of Consumer Goods by issuance of a Memo No. DCG/CON/ 195 dated August 28, 2014 in exercise of the provision of Paragraph 5(VI) of the Control Order. The inspection team was formed 2010 to undertake inspections to find out the status of lifting of kerosene oil by the respondent no.1 from Hindustan Petroleum Corporation Limited, both on account of its licence and on account of tagged allocation of M/s Jain Traders which had been tagged with the respondent no.1, on and from June 3, 2013, maintenance of sale and stock registers, status of actual figure of kerosene oil supplied by the respondent no.1 to all dealers tagged with it, status of actual ?gure of kerosene oil received by the dealers as mentioned in the sale and stock registers, status of supply of kerosene oil by the dealers to the ration card holders or to other dealers and the actual ?gures of supply and receipt of kerosene oil by the dealers in connection with the respondent no.1. 5. It is contended that in view of the judgment and order passed in AST 177 of 2013 with ASTA 101 of 2013, in the matter of R.K.B.K. v. State of West Bengal, involving certain issues regarding the jurisdiction of the Director of Consumer Goods an amendment was effected in Clause- 9 of the West Bengal Kerosene Control Order, 1968. Thereafter, the Sub-Divisional Controller, Food & supply, Kharagpur, Paschim Midnapore had suo-motu decided to hold an inspection and had accordingly issued an order on September 8, 2014, bearing Memo No. 602/SCF&S/KGP/14, for inspection of the affairs of the respondent no.1 from April, 2010 to March, 2014. 6. The inspection team visited the outlets of the respondent no.1 and all tagged dealers for physical checking, including sale and stock registers and all other related books of accounts in connection with distribution of S. K. oil. District Magistrate, Paschim Medinipur was requested by the Commissioner, Food & Principal Secretary, Government of West Bengal to provide specialized manpower to the Sub-Divisional Controller of Food and Supplies for holding the said inspection vide his letter being Memo No. CG/K.oil/Cell/110 /2014/444 dated September 9, 2014 in term the Commissioner of Food issued letter dated September 10, 2014 to the District Magistrate deputing certain officials of the Department of Consumer Goods to take inspection. 7. The said memorandum dated September 8, 2014 was challenged regarding de-allocation and de-tagging, the respondent no.1 had filed a writ petition being W.P. No. 26448(W) of 2014 and by an order dated September 26, 2014, the writ court hold that there was no legal right on the part of an agent to held on to dealers temporarily tagged with him till the vacancy in question had been filled up and declined to interfere with the impugned administrative action taken by the authority and to hold an inquiry. 8. The inquiry was conducted and enquiry report was submitted on January 27, 2015. In the said inquiry discrepancy to the tune of 3686 liters of S. K. oil was detected, as the respondent no. 1 had shown that it was sold to the tagged dealers in the stock and sales register, but on examination of the stock registers of the tagged dealers, it was found that the said quantity had not actually been sold. Apart from detecting several irregularities were identified. 9. In terms of the inquiry report the Director of Consumer Goods placed the licence issued to the respondent no.1 under suspension in terms of Paragraph 9 of the Kerosene Control Order, 1968 and issued a show-cause notice to the respondent no.1 to explain by February 18, 2015 the lapses and contraventions detected. But the respondent no. 1 did not appear so, the authority passed an order holding the respondent no.1 guilty of several lapses and misappropriations and the licence issued to the respondent no.1 was cancelled with immediate effect with imposition of a fine of Rs. 20,88,11,900/-. 10. The said order of the Director of Consumer Goods dated February 2, 2015 and February 18, 2015 were impugned in the writ petitions being W.P. No. 4758(W) of 2015 and WP. No. 5335(W) of 2015 challenging the action of the appellants but prayer for interim relief was refused. So the respondent no. 20,88,11,900/-. 10. The said order of the Director of Consumer Goods dated February 2, 2015 and February 18, 2015 were impugned in the writ petitions being W.P. No. 4758(W) of 2015 and WP. No. 5335(W) of 2015 challenging the action of the appellants but prayer for interim relief was refused. So the respondent no. 1 preferred being A.S.T. 72 of 2015 with A.S.T.A. 47 of 2015 and the Division Bench of this Hon’ble Court by its order dated May 8, 2015 quashed the order dated February 18, 2015 and granted liberty to the Director of Consumer Goods to issue further order in relation to the show-cause cum-suspension notice dated February 2, 2015 by permitting the respondent no.1 to submit an explanation in writing for the discrepancies in respect of the stock of kerosene oil and thereafter to proceed with the matter. 11. In compliance thereof an opportunity was given to the respondent no.1 to submit an explanation in writing by May 25, 2015 and the letter issued a reply in writing dated May 22, 2015 alleging baseless allegations, without answering the charges. Respondent was also granted opportunity to appear on June 8, 2015 for hearing but he did not appear. So, upon consideration of the report in detail the Director of Consumer Goods passed an order dated June 8, 2015, directing cancellation of the licence of the respondent no.1 being Licence No. AGT/MID(S)/59 New No. DCG-420-15 and imposition of fine of Rs.20,88,11,900/-. 12. Challenging the said order the respondent no. 1 filed writ being W.P. No. 12871(W) of 2015 with a prayer for issuance of writ in the nature of Mandamus commanding the respondent and each of them to cancel/rescind or set aside the orders dated 02.02.2015, 15.05.2015 and 08.06.2015 and to restore the allocation to the petitioners/ respondents herein. 13. The learned Single Judge passed an interim order restraining the State authorities from taking any further steps on the basis of the impugned order dated June 8, 2015 and by an order dated April 27, 2016 quashed and set aside the orders of the Director of Consumer Goods dated February 2, 2015, May 15, 2015 and June 8, 2015 observing the enquiry report dated January 27, 2015 as ‘nonest’. 14. 14. It is submitted on behalf of the appellants that the impugned judgment suffers from several inconsistencies and errors for not having taken into account the lapses and misappropriation on the part of the respondent no.1. 15. The learned Judge has also failed to consider the provision of Paragraph 9 of the West Bengal Control Order, 1968 which was duly complied with by the appellants because the licence can be cancelled and suspended even without an inquiry but in this particular case the inquiry was ordered to be made as regards irregularities and misappropriation after giving show-cause notice and the opportunities to the respondent no. 1 who had adopted unfair means violating of the provisions the West Bengal Kerosene Control Order, 1968 and his actions prejudicially affected the poor and hapless ration card holders. 16. Accordingly, the State authorities have preferred this appeal challenging the impugned judgment dated April 27, 2016 passed in W.P. 12871 (W) of 2015 [M/s G.S.N. Murty and Another vs. The State of West Bengal 85 Others] inter alia, on the grounds made in the memorandum of appeal praying for setting aside and staying the operation of the order impugned and directing responding no. 1 forthwith to make payment of a sum of Rs.20,88,11,900/-. 17. The learned writ court disposed of the written application with the following findings— “35. I also ?nd that by not supplying the documents as prayed for by the petitioner vide letter dated 22nd June, 2015 as well as 5th June, 2015 the impugned extreme decision was taken by the Director of Consumer Goods ex parte against the petitioner thereby cancelling the licence with immediate effect and also imposing fine and penalty under Schedule E of the Paragraph 9 of the said Control Order, 2014 which is in clear violation of the principle of natural justice and thus cannot be sustained in the eye of law. 36. Accordingly, the impugned order dated 2nd February, 2015, 15th May, 2015 as well as 8th June, 2015 issued by the Director of Consumer Goods are hereby quashed and set aside. 36. Accordingly, the impugned order dated 2nd February, 2015, 15th May, 2015 as well as 8th June, 2015 issued by the Director of Consumer Goods are hereby quashed and set aside. 37.I direct the respondent no.2 the Director of Consumer Goods West Bengal Food and Supply Department to hold a fresh inspection as per Paragraph-9 (ii) of the said Control Order, 2014 after giving notice to the petitioner and thereafter issue fresh show-cause notice and conclude the entire proceeding within twelve (12) weeks in accordance with law.” 18. It has been contended on behalf of the appellants that order dated 8th June, 2015 has been passed in terms of Paragraph 9(A)(i) of the Control Order which enjoined the procedure for dealing with violation of provisions of the Control Order by S.K. Oil Dealers and reads thus— “(i) If an S.K. Oil Dealer or his/her authorized representative or any other person acting on his/her behalf contravenes any of the provisions of this Order or any of the regulations made there under or any of the conditions of his/her licence, or any discrepancy of stocks is detected, the DCG in Kolkata and Bidhan Nagar areas or the District Magistrate in other districts or the State Government through an officer not below the rank of Assistant Director shall issue a notice to the concerned Dealer asking for explanation in writing for such discrepancy.” 19. The competent authority under the provision issued a notice to show-cause upon the respondent no. 1 and the order of cancellation of the licence and imposition of fine was passed ex parte against the respondent no.1/writ petitioner as he failed and neglected to appear before the Authority. Therefore, there was no violation of principle of natural justice for not having given proper opportunity of being heard to the respondent no.1 as alleged but the learned Judge was of the view that without supplying the record sought for by the writ petitioner, the decision impugned was taken by the authority ex parte and for that respondent no. 2 Director of Consumer Goods, West Bengal Food & Supply Department has been directed to hold fresh inspection as per Paragraph 9(ii) of the Control Order, 2014 after giving notice to the writ petitioner calling upon him to show-cause afresh and to conclude entire proceeding within twelve (12) weeks in accordance with law by quashing the order impugned. 20. 2 Director of Consumer Goods, West Bengal Food & Supply Department has been directed to hold fresh inspection as per Paragraph 9(ii) of the Control Order, 2014 after giving notice to the writ petitioner calling upon him to show-cause afresh and to conclude entire proceeding within twelve (12) weeks in accordance with law by quashing the order impugned. 20. Bearing upon the facts discussed above and documents on the basis of which the authority passed the order impugned cancelling the licence and imposing fine upon the respondent no. 1 under challenge before the writ court, we are of the view that in such matter writ court should not take the matter so lightly however, since the writ court has not curtailed the right of the appellant authority to proceed afresh as per the rule, we decline to interfere with the order and direction given by the writ court to hold fresh inquiry and to conclude the same within twelve weeks afresh by supplying the documents to the writ petitioner/respondent herein. 21. In the context above, appeal is dismissed without entering into the merit of the case. However, we make no order as to costs. 22. Consequently, the applications being CAN No. 15 of 2017 and CAN No. 255 of 2017 are disposed of. 23. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.