Proiz Nashir vs State Of West Bengal & Ors
2023 Latest Caselaw 5009 Cal

                IN THE HIGH COURT AT CALCUTTA
              CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI

                            WPA/22630/2019

                               Proiz Nashir
                                   -Vs-
                       State of West Bengal & Ors.


      For the Petitioner: Mr. Sagar Bandyopadhyay, Adv.,
                           Ms. Soma Kar Ghosh, Adv.

      For the State:       Mr. Amitesh Banerjee, Adv.,
                           Mrs. Ipsita Banerjee, Adv.


Heard on: 27 July, 2023.
Judgment on: 14 August, 2023.

BIBEK CHAUDHURI, J. : -

1.    This instant writ petition is filed by one Proiz Nashir, the owner of a

Fair Price Shop and a dealer and distributor of Superfine Kerosene Oil

(S.K. Oil) praying for issuing a writ of Mandamus commanding the

respondents to forbear themselves from giving any effect to the show-

cause-cum-suspension orders terminating the license of the petitioner

and cancelling or rescinding the same.

2. It is the case of the petitioner that he was appointed as Modified

Ration Dealer (Now known as Fair Price Shop owner) in 1996. The

petitioner was also granted license to act as a dealer under the West

Bengal Kerosene Control Order, 1968 to distribute Superfine Kerosene Oil

(S. K. Oil) under the Public Distribution System (PDS). The petitioner

states that after coming into force of the West Bengal Public Distribution

System (Maintenance & Control) Order, 2003, the petitioner was granted

Fair Price Shop License and after the repealof the said 2003 Control Order

by the West Bengal Public Distribution System (Maintenance & Control)

Order, 2013, the petitioner was granted a fresh license under the said

2013 Control Order.

3. The petitioner alleges that on 1st December 2018, in the course of

the distribution of ration commodities, there was a commotion due to

inter-se disputes between one Buli Khatoon and the petitioner. In such

commotion an oil drum containing about 150 liters of Kerosene was

toppled and the registers and other important documents were also taken

away by some miscreants taking advantage of the said commotion. The

petitioner reported such an incident to the Officer-in-Charge,

Harishchandrapur P.S., by a complaint dated 01.12.2018. The dispute

between the petitioner and the said Buli Khatoon was mutually settled in

the presence of local people and an "Aposhnama" duly signed by the

above persons was also submitted to the Police authorities.

4. The petitioner states that he was not feeling well and decided to

visit a doctor for a medical check-up on 04.12.2018 and accordingly he

visited the Doctor's chamber and could not open the said shop on that

date. On 04.12.2018, on an enquiry by the Area Inspector, Food and

Supplies Department,it was stated in the report that the shop of the

petitioner was closed during the said inspection and at the time of

enquiry, the local people informed that on 01.12.2018 evening the

petitioner distributed S. K. Oilto the customer and in the presence of

many customers, the petitioner behaved roughly with one of the

customers and consequently, the petitioner was locked at his godown by

the customer and after sometime, the police of Harishchandrapur P.S.

rescued the dealer. Therefore, upon enquiry, the following conclusion was

reached:

(i) At the time of enquiry on 04.12.2018, the shop was closed.

(ii) The dealer opened his shop thrice a week, on Thursday, Friday

and Saturday.

(iii) The dealer (petitioner) behaved very roughly with the customers.

(iv) The dealer delivers less quantity of food grains to his customers.

5. On 06.12.2018 the petitioner was served with two separate show

cause Notice-cum Suspension orders issued by the Sub-divisional

Controller, Food & Supplies, Chanchal where it appeared that the Sub-

Divisional Controller placed both the dealerships of the petitioner under

suspension and asked the petitioner to show cause within seven days of

receipt of the said orders in respect of both the dealerships containing

same allegations. The petitioner alleges that in none of the said show-

cause-cum-suspension orders, both dated 05.12.2018, any penal action

against the petitioner was proposed. Moreover, the petitioner alleged that

the Sub-Divisional Controller purportedly relied upon an inspection report

of the Area Inspector, Food & Supplies, Harishchandrapur. However, no

copy of such inspection report was forwarded to the petitioner along with

any of the said two show cause cum suspension orders. It further appears

that the Sub-divisional Controller had sought to act under two different

control orders governing the said two dealerships of the petitioner.

6. The petitioner contends that the allegations in the enquiry report of

the Area Inspector are vague and devoid of any particulars. It was not

disclosed when the shop was sought to be inspected by the Area Inspector

on 04.12.2018, which does not justify the allegation that the shop was

closed during opening hours. No details about the customers and of any

complaint have been given in order to allege that the behaviour of the

petitioner towards his customers was rough and that he distributes less

quantity of food grains or S.K. Oil to the beneficiaries. He also contends

that the allegation that he opens his shop only thrice a week is equally

vague.

7. The Learned Advocate for the petitioner argues that there was no

material available to the Sub-Divisional Controller on 05.12.2018 based

on which he formed a prima-facie opinion that the petitioner had violated

any provision of the West Bengal Public Distribution System(

Maintenance & Control) Order, 2013 and the amended West Bengal

Kerosene Control Order, 1968 and that he has acted mechanically. Clause

18 of Part III of the Control Order, 2013 mentions that the distribution

hours of food grains are in between 7.30 A.M. and 11.30 A.M. in the

morning and between 4.00 P.M. and 6.00 P.M. in the evening subject to

the availability of ration articles in stock, but no such timing has been

provided under that West Bengal Kerosene Control Order 1968. The only

requirement of S.K. Oil dealership is to distribute S.K. Oil amongst the

beneficiaries till the exhaustion of the stock and till the next allotment of

S.K. Oil, a dealer is not required to keep his shop open on a daily basis

even after the exhaustion of his stock from the previous allotment.

8. On 17.12.2018, the petitioner received a hearing notice asking him

to appear before the Sub-Divisional Controller for a personal hearing in

connection with the show cause notice dated 05.12.2018 along with all

the relevant documents and it was mentioned in the hearing that the

reply of the petitioner to the notice was unsatisfactory. In the hearing, the

petitioner contended that despite his best efforts he could not recover the

stolen documents which were taken from his shop during the altercation

and that all disputes with the said Buli Khatoon were settled pursuant to

the signing of the "Aposhnama". They contend that the Sub-Divisional

Controller arrived at the conclusion that the reply of the petitioner was

unsatisfactory even before giving him a personal hearing and that itself is

a violation of the principles of natural justice.

9. It is contended by the Learned advocate for the petitioner that he

received two termination orders, Memo nos. 491 and 492, both dated

31.12.2018, in spite of the Food and Supply Department not being able to

prove any of the charges levied against the petitioner, on the basis of the

evidence, either documentary or oral and no witness was examined and

no document was tendered as evidence. However, he appealed before the

District Controller, Food and Supplies, Malda on 30.01.2019 against the

termination orders. The petitioner argues that that there was no question

of preferring any statutory appeal against the impugned order of

termination, as both the orders were non-speaking orders and were in

gross violation of the principle of Natural Justice and no appeal could

have lied before the District Controller against the order of the Sub-

Divisional Controller terminating the S.K. Oil dealership of the petitioner.

However, the District Controller, on the basis of the purported appeal of

the petitioner, by a notice dated 12.02.2019 asked the petitioner to

appear before him for a personal hearing on 20.02.2019 and he appeared

for the same. Subsequently, the petitioner was served with the order

passed by the District Controller, Food & Supply, Malda, by a forwarding

Memo No. 803/DCFS/MR/19 dated 26.03.2019, where the District

Controller proceeded in the matter upon treating the appeal of the

petitioner as an appeal under Clause 25 of the Control Order of 2013.

10. The petitioner contends that the District Controller approved the

order passed by the Sub- Divisional Controller upon holding the petitioner

guilty for some charges to which the petitioner was never charged in the

show cause notice. The District Controller took into account some

extraneous materials and had gone beyond the scope and purview of the

show cause notice and the appeal filed by the petitioner. The District

Controller also specifically relied on the purported inspection report of the

Area Inspector, the copy of which was never supplied to the petitioner

even at the time of hearing of the appeal. He, therefore, argues that the

non-supply of alleged inspection report and non-proposal of any penal

action in the show-cause notices caused serious prejudice to the interest

of the petitioner as he was neither made aware of the contents of the

inspection report as ultimately relied upon by the respondents nor he had

the scope of giving proper reply and taking a proper step in the matter.

11. Based on the enquiry report by the Area Inspector, the respondents

argue that the petitioner is in violation of Clause 18 and Clause 19(8) of

the WBPDS Control Order, 2013. The Sub-Divisional Controller after

affirming the findings of the Area Inspector held that the petitioner has

violated Clause 6(B)(IV) of the Kerosene Control Order, 1968 and

subsequently cancelled his license. The District Controller, Food and

Supplies in the Order dated 26.03.2019 held that as some important

books of accounts have been taken by the crowd, this violates Clause

19(12) of WBPDS (M&C) Order, 2013 and also that the charged levied

against the petitioner were true. Therefore, he upheld the termination

order. On the contention of the petitioner that the appeal of the petitioner

was treated as an appeal under Clause 25 of the WBPDS (M&C) Order,

the respondents contend that the petitioners indeed has filed the appeal

under Clause 25 of the WBPDS (M&C) Order and the amended Section 9(i)

of the WB Kerosene Control Order 1968. Moreover, the petitioner was

entitled to appeal within a period of 30 days from the receipt of the same

which the petitioner chose not to do.

12. The learned Advocate for the petitioner in course of his argument

draws my attention at the outset to the show cause-cum-suspension

notice dated 5th December, 2018 issued by the Sub-Divisional Controller,

Food & Supply, Chanchal. Notice to show-cause consists of the following

grounds:-

(i) During the inspection hours fair price shop run by the

petitioner was closed, despite being opening hours.

(ii) Behavior of the dealer towards customers is very rough.

(iii) The petitioner opened his shop for only three days in a week.

(iv) The beneficiaries made a complaint against the petitioner that

he used to distribute less quantity of food grains to the

consumers.

13. The above acts were done by the petitioner in violation of clause 18

and 19(B) under the WBPDS (Maintenance and Control) Order 2013. The

petitioner was directed to show cause as to why appropriate action shall

not be taken against him for being in violation of clause 18 and 19(B) of

the Control Order of 2013 within seven days from the receipt of the order.

14. It is submitted by the learned Advocate for the petitioner that in the

show-cause notice the Sub-Divisional Controller did not mention the

name of any witness or beneficiary who made complaint against the

petitioner alleging rough behavior and distribution of less quantity of food

grains to the customers.

15. The learned Advocate for the petitioner then takes me to the reply to

the show cause notice submitted by the petitioner wherein he stated that

on 4th December, 2018 he closed this fair price shop in order to visit a

medical practitioner for treatment on 4th December, 2018 as at about 7

am he suddenly fell ill. All these allegations were denied by the petitioner.

The Sub-Divisional Controller, Food & Supply, Chanchal had gone

through the reply submitted by the petitioner to the show cause notice

and found the reply to be unsatisfactory and thereafter required him for

personal hearing. Finally, the Sub-Divisional Controller passed an order

holding, inter alia, that the petitioner grossly failed under Clause 18 and

19(B) of the WBPDS (Maintenance and Control) Order, 2013 with

subsequent amendment and conditions as laid down in the license issued

to him and therefore, his license was cancelled. Consequently his

dealership was also terminated. It is further argued by the learned

Advocate for the petitioner that on 3rd December, 2018 the petitioner

made a complaint before the Inspector-in-Charge, Harishchandrapur P.S

stating, inter alia, that on 1st December, 2018 in the evening when he was

distributing the ration commodities, some agitating people trespassed into

his shop and toppled the drum containing Kerosene oil snatch away some

essential registers etc from the shop.

16. It was submitted by the learned Advocate for the petitioner that he

made a statuary appeal before the District Controller Food & Supply

Department, Malda. He was directed to appear personally to take part in

the hearing of the appeal on 20th February, 2019. Finally the District

Controller passed an order holding, inter alia, that the petitioner

deliberately failed to inform the matter to the authority concerned. The

petitioner could not produce any books of accounts during hearing before

him or before the Sub-Divisional Controller, though the authority

concurred with the views of the Sub-Divisional Controller.

17. Mr. Bandyopadhyay, learned Advocate for the petitioner at the

outset submits referring to the show cause notice that the show cause

notice contains charge on four counts and the charges are vague and are

elucidated by the statement of particulars or in any other manner. In

support of his contention he refers to a judgment of the Hon'ble Supreme

Court in the case of Transport Commissioner, Madras-5 vs. A. Radha

Krishna Morthy reported in (1995) 1 SCC 332 where it is held in

paragraph 9 of the said judgment that a reading of charges would show

that they are not specific and clear. They do not point out clearly the

precise charges against the respondent, which he was expected to meet.

One can understand the charges being accompanied by a statement of

particulars or other statement furnishing the particulars of the aforesaid

charges but that was not done. The charges are general in nature. Thus,

the Hon'ble Supreme Court held that in view of the vagueness of the

charge the respondent cannot be punished. Coming to the instant case, it

is submitted by the learned Advocate for the petitioner that the Area

Inspector visited the fair price shop on 4th December, 2018. According to

the report of the Food & Supply Department, some beneficiary made

allegations against the petitioner that he behaved with them in a rude

manner. He used to open his shop for only three days in a week and he

used to give less quantity of food grains to the beneficiaries. Surprisingly

enough, neither in the report of the Food Inspector nor in the show cause

notice nor and the order passed by the Sub Divisional Controller and the

District Controller, names of any one of such beneficiaries who made such

allegation was disclosed. In Sk. Mansur Haque vs. State of West Bengal

& Ors., WP No.17111(W) of 2006 a Co-ordinate Bench of this Court

decided on 28th July, 2009 was pleased to hold that once the Sub-

Divisional Controller decided to rely on the complaint or enquiry report,

both of which were admittedly prepared behind the petitioner's back, the

Sub-Divisional Controller incurred the obligation to supply the petitioner

copies thereof giving him reasonable opportunity to deal with the

condition thereof. by not supplying copies of this materials, the Sub-

Divisional Controller denied the petitioner reasonable opportunity of

defend himself. In the instant case also the petitioner was not supplied

with the enquiry report submitted by the Food Inspector in order to

defend himself. Thus Sub-Divisional Controller followed absolutely unfair

procedure.

18. On the vagueness of charge, the learned Advocate for the petitioner

also refers to the decision of Anant R. Kulkarni vs. Y.P Education

Society & Ors. reported in (2013) 6 SCC 515 and Oryx Fisheries

Private Limited vs. Union of India & Ors. reported in (2010) 13 SCC

427.

19. Learned Advocate on behalf of the State Respondent, on the other

hand submits that a dealer of fair price shop is only an agent for

distribution of scheduled commodities under the Public Distribution

System. Such licensee being only an agent for the principal i.e., the

government, with fixed rate of commission on the amount of allocation of

essential commodities and their distribution by weight. The public

distribution system has been envisaged by the government only to hold

poor and needy. It is honest tax payers money which is used to subsidies

the price of such essential commodities so that they come within the

reach of poor and needy and they are able to feed themselves and their

family in a respectable fashion and are not led to mendicancy and

starvation. The principal remaining the State Government and the

licensee being the agent, the principle is entitled to take away the license

in case of irregularity in distribution. Of course there should exists valid

reasons for taking away of such license and some opportunity of hearing

is required to be given to the agent in case of complaint being received

against him. However, there is not Fundamental Rights nor any

Constitutional Right for such licensee akin to Article 311 of the

Constitution of India. Even in case of government servants protected

under Article 311 of the Constitution of India, the degree of proof required

for establishment of deed is that of preponderance of probability. In the

instant case it is proved that the petitioner failed to produce the relevant

registers and books of documents before the Sub-Divisional Controller

and District Controller which he was duty bound to maintain. The non-

production of the said documents attract some specific provisions of the

Control Rule of 2013. Therefore this Court does not find any reason to

interfere with the impugned order passed by the District Controller.

20. It is also argued by the learned Advocate for the petitioner against

the order passed by the District Controller, that the petitioner had the

remedy to prefer an appeal before the higher authority when alternative

efficacious relief is available in the statute, the instant writ application is

not maintainable.

21. Having heard the learned Advocate for the parties and on perusal of

the materials on record this Court records that the fair price shop dealer

is under obligation to act in accordance with the provisions contained in

WBPDS (Maintenance and Control) Order, 2013. The Control Order

framed by the State Government is in the nature of statute laying down

detailed procedure for running business of fair price shop. It also contains

the provisions of taking disciplinary action against a licensee for non-

compliance of any of the provisions of the Control Order and give

punishment up to the level including the termination of license. It is

established law that in judicial/quasi-judicial/administrative order which

prejudicially affect any party or has adverse civil consequences for that

party. It must be supported by cogent reason this is one of the basic limbs

of natural justice. The writ petitioner has challenged the order of the

District Controller who affirm the order of termination passed by the Sub-

Divisional Controller against the writ petitioner. I am in conformity with

the submission made by the learned Advocate for the petitioner that the

show cause notice as well as the impugned orders are void of any material

finding as to whether there was any specific complaint that the behaviour

of the petitioner was very rough or that he used to distribute less quantity

of food grains to the beneficiaries. On perusal of the record this Court

does not find any evidence in support of the allegation that the petitioner

used to behave with the beneficiary roughly or that he distributed the

food grains in less quantity etc. There is also no evidence that he used to

open his shop for three days in a week. Only evidence against the

petitioner is that the petitioner closed his shop on 4th December, 2018

when the Food Inspector visited his shop and he failed to produce

registers and books of accounts.

22. The petitioner has offered an explanation to the effect that on 1st

December, 2018 there was a commotion in his shop and some people

toppled kerosene oil and snatch away some registers and books of

accounts. Regarding the theft of registers and books of accounts he

lodged a complaint in the local police station on 3rd December, 2018, i.e.,

prior to inspection of his shop. The Sub-Divisional Controller and the

District Controller failed to consider those documents submitted by the

petitioner in course of personal hearing.

23. For the reasons stated above, I am of the view that the impugned

order dated 26th March, 2019 passed by the District Controller, Food and

Supply, Malda affirming the order passed by the Sub-Divisional

Controller, Food and Supply Department, Chanchal on 3rd December,

2018 terminating the license of the petitioner should be quashed and set

aside.

24. The Sub-Divisional Controller is directed to re hear the case against

the petitioner on two counts:-

(a) That the fair price shop was closed on 4th December, 2018.

(b) That the petitioner failed to produce the relevant registers

and documents when those were called for.

The hearing shall be completed within 60 days from the date of

communication of the order by passing an appropriate order in

accordance with the relevant provisions of WBPDS (Maintenance and

Control) Order, 2013.

(Bibek Chaudhuri, J.)