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2021 DIGILAW 288 (ORI)

Bdn Food Products v. State Of Odisha

2021-07-05

BISWANATH RATH

body2021
JUDGMENT Biswanath Rath, J. - This matter is taken up through video conferencing mode. 2. Heard the submissions of Mr.Mishra, learned counsel for the petitioner and Mr.Ghosh, learned Addl. Standing Counsel for the State. 3. Taking this Court to the manner of indication at Annexure-1, Mr.L.Mishra, learned counsel for the petitioner contended that no doubt there is pendency of F.I.R. on the alleged offence since it is false and concocted, unless the proceeding involving the F.I.R. culminate, no authority lies with the Collector, Dhenkanal to issue show-cause notice under the premises of alleged pendency of an F.I.R. It is contended that from the manner of preparation of showcause notice, there is every possibility that allegations recorded there may persuade the Collector to go against petitioner even after he submits his response. Reading through the disclosures under U.K.Sahoo Annexure-1, Mr.Mishra, taking this Court to the decisions of the Hon'ble apex Court in the case of K.I.Shephard Vs. Union of India, (1987) 4 SCC 431 and Oryx Fisheries Private Limited Vs. Union of India & Ors., (2010) 13 SCC 427 contended that since the showcause notice of the Collector, Dhenkanal has already come to observe as if petitioner has already committed the offence indicated therein, there may not be anything available for his further consideration pursuant to submission of response to show-cause by the petitioner and issuing such show-cause notice becomes an empty formality. It is in this view of the matter, Mr.Mishra, learned counsel for the petitioner requests for interfering in the show-cause notice and setting aside the order at Annexure-1 for being already a prejudged one. 4. Mr. Ghosh, learned State Counsel however reading through Annexure-1 though did not dispute to the manner of notice but however contested the writ petition on the premises that since the proceeding is at show-cause stage, petitioner has got the scope of agitating the dispute raised herein and the matter may be left open for consideration of the concerned Collector. Mr.Ghosh, learned State Counsel taking this Court to the development through Annexure-4 submitted that for there is already direction to create transit challan for proceeding involving the petitioner, the apprehension of the petitioner remains premature. Mr.Ghosh, learned State Counsel taking this Court to the development through Annexure-4 submitted that for there is already direction to create transit challan for proceeding involving the petitioner, the apprehension of the petitioner remains premature. Mr.Ghosh while submitting that all the recording therein have been based on allegation made by lady employee involving petitioner in the FIR and still there is scope with the Collector to take an independent decision based on petitioner taking stand in his response to the show-cause and in the circumstance, Mr. Ghosh submitted that presently decision vide K.I. Shephard and others Vs. Union of India and others, (1987) 4 SCC 431 r has no application to the case at hand and matter may be left for consideration of the Collector. 5. Hearing the rival contentions of the parties, this Court reading through Annexure-1 at Page-14 finds that Annexure-1 is a show-cause notice, which reads as follows : "It has come to my notice that on 11.05.2021 during 1.00 PM Smt. Lopamudra Dhal, Procurement Inspector, RRC-cum-DSC, Manisapat as ascertained from the FIR lodged in the Town Police Station, Dhenkanal by Smt. Dhal Besides this, you being a Custom Miller have also made attempt to snatch her Mobile, abused her physically, injured her inside the Godown & forced her to received inferior quality rice. You are therefore directed to show cause as to why you shall not be blacklisted from procurement operation of the district on the above ground within 3 days from the date of receipt of this letter." 6. The Collector, Dhenkanal while issuing show-cause notice of course has the recordings on the basis of disclosures in the F.I.R. undisputedly pending charge-sheet and then if required trial. This Court however observes since allegations taken note in the showcause cannot influence the Collector as trial involving such allegation is still awaited. 7. Taking into consideration the submission of Sri Mishra that there is no proceeding ever undertaken by the Collector, Dhenkanal to come to conclude his observations and that the allegation remain in F.I.R. stage and yet to be established, Collector should not take unproved allegations while considering a drastic issue involving black listing the petitioner, this Court here observes the Collector observing so many things based on contents in an F.I.R. cannot be treated as proof at least at this stage. This Court again observes in the event an F.I.R. involving such allegation is lodged, it is for the competent authority to come to such view in a duly constituted proceeding after the trial is over. For the allegation made by the petitioner that there has been no enquiry involving such issue by any competent authority and the allegation in F.I.R. remains unproved, this Court finds show-cause notice has to be considered independently but dependent on explanation likely to be submitted by the petitioner and of course taking into consideration the overality of the materials involving the issue 8. This Court here taking into consideration the decision of the Hon'ble apex Court in K.I. Shephard (supra) through para-12 has come to observe as follows :- 12. Mullan in Fairness : The New Natural Justice' has stated : "Natural justice co-exists with, or reflected, a wider principle of fairness in decision-making and that all judicial and administrative decision-making and that all judicial and administrative decision-makers had a duty to act fairly. " In the case of State of Orissa v. Dr. (Miss) Binapani Dei, (1967) 2 SCR 625 this Court observed: "It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken; the High Court was, in our judgment, right in setting aside the order of the State." ln A.K Kraipak v. Union of India & ors., (1970) 1 SCR 457 a Constitution Bench quoted with approval the observations of Lord Parker in Re: (H) K (an infant) Hegde, J. speaking for the Court stated: "Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry." These observations in A.K. Kraipak's case were followed by another Constitution Bench of this Court in Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, (1970) 2 SCR 600 . In Swadeshi Cotton Mills v. Union of India, (1981) 2 SCR 533 a three-Judge Bench of this Court examined this aspect of natural justice. Sarkaria, J. who spoke for the Court, stated:- "During the last two decades, the concept of natural justice has made great strides in the realm of administrative law. Before the epoch-making decision of the House of Lords in Ridge v. Baldwin, (1964) AC 40, it was generally thought that the rules of natural justice apply only to judicial or quasi-judicial proceedings; and for the purpose, whenever a breach of the rule of natural justice was alleged, Courts in England used to ascertain whether the impugned action was taken by the statutory authority or tribunal in the exercise of its administrative or quasi-judicial power. In India also, this was the position before the decision dated February, 1967 of this Court in Dr. Bina Pani Dei's case (supra); wherein it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. In India also, this was the position before the decision dated February, 1967 of this Court in Dr. Bina Pani Dei's case (supra); wherein it was held that even an administrative order or decision in matters involving civil consequences, has to be made consistently with the rules of natural justice. This supposed distinction between quasi-judicial and administrative decisions, which was perceptibly mitigated in Bina Pani Dei's case (supra) was further rubbed out to a vanishing point in A.K. Kraipak's case (supra) ". On the basis of these authorities it must be held that even when a State agency acts administratively, rules of natural justice would apply. As stated, natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representations on their own behalf; (b) or to appear at a hearing or-enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they have to meet. 9. In view of discussion made hereinabove, the legal position on the above issue involved herein and discussed/taken note hereinabove and as the petitioner has already submitted his response to the show-cause, vide Annexure-3 series, the issue involving the show-cause be considered independent of allegations in the F.I.R. since these are all in consideration level and unproved until now but however taking into account the overality of the matter and giving opportunity of hearing to the petitioner keeping in mind that any adverse order against the petitioner will have far reaching consequence. 10. With the above direction, the writ petition stands disposed of. 11. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a print out of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned Advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's notice No.4798, dated 15th April, 2021.