Calcutta High Court (Appellete Side)
M/S. Sudhir Chandra Das & Sons And ... vs The State Of West Bengal & Ors on 17 October, 2023
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jay Sengupta
WPA 11829 of 2021
M/s. Sudhir Chandra Das & Sons and anr.
Versus
The State of West Bengal & Ors.
For the petitioner : Mr. Ajay Debnath
Mr. Pradip Kar
Mr. Sujit Saha
Mr. Devranjan Das
Ms. S. Datta
.....Advocates
For the State : Mr. Susovan Sengupta
Mr. Subir Pal
......Advocates
Heard lastly on : 01.05.2023
Judgment on : 17.10.2023
Jay Sengupta, J.:
1. This is an application under Article 226 of the Constitution of India
praying for quashing of the impugned orders dated 24.09.2019 and
12.04.2021 and for recalling of the termination order of distributorship
licence.
2
2. Learned counsel appearing on behalf of the petitioners submitted as
follows. The substantial questions of law to be adjudicated in the present
writ petition as follows. (a) Whether the Inspection Report should not be
supplied with the alleged show cause notice dated 23.03.2018. (b) Whether
a person could be the Judge of its own cause. As the alleged show-cause
notice dated 23.03.2018, the impugned suspension order 27.04.2018 and
the impugned illegal termination letter of licence dated 21.05.2018 had been
passed by the District Controller (F&S), the same were not sustainable in
the eye of law. (c) Whether or not the First Appellate Order passed by
Deputy director (Licence) dated 19.11.2019 was at all justified. The
Appellate Authority neither gave any importance to the grounds as preferred
by Appellants/petitioners nor applied any mind in respect of fact of violation
of natural justice. (d) Whether the respondents had stated what
mechanism under West Bengal Public Distribution System (Maintenance
and Control) Order, 2013 was considered against the petitioners for
imposing penalty. Even in Essential Commodities Act 1955 (Act No. 10 of
1955) no whisper was there regarding the mechanism for imposing penalty.
(e) Whether not giving the investigation report for the show cause notice
dated 23.03.2018 was at all valid in respect of violation of para 29 of the
said Control Order 2013 (f) Whether or not the respondents had followed
fairness of procedure all along right from the inspection to the termination of
the licence of the petitioner. On 29.11.2016 the South 24-Paraganas,
District Committee of West Bengal M.R. Distributor's Association submitted
a representation to the District Controller (Food & Supply) South 24-
Parganas, the respondent no. 4 discussing in details the problems/troubles
they were facing since long time as mentioned. But, till date no solution was
there from the end of the State. Having failed to get any response from the
State, the "South 24-Paragans District Committee" of the West Bengal M.R.
Distributors' Association sent two written representations dated 21.08.2017
and 31.08.2017 to the District Controller (Food & Supply), South 24-
Paragans for reimbursement of old pending transport rebate bills. Not only
that Transport Rebate from 2002 to 2011 of Rs. 53,81,236/- and April 2015
to May 2015 of Rs. 4,14,08,570/- were pending, but in that regard District
Controller (F&S) also accepted the complaint and directed to the Joint
Director (Supply) directorate D.D.P. & S to consider the same. The order
passed in W.P. No. 9933 (W) of 2019 stated that the petitioner should allow
to transfer the goods viz. rice, wheat and sugar to the newly linked M/R
Distributor M/s. Radhakrisna Roy. As such, actually there was no shortage.
In the case of Maneka Gandhi versus Union of India reported at (1978) 1
SCC page 1 it was observed that justice was should not only be done, but be
seemed to have been done. In respect of the Appellate Order dated
13.04.2021 passed by the Secretary, Department of Food & Supply, there
was no observation. Rather, it was nothing but a copy-paste of the Appellate
Order of the Director, DDP & S dated 19.11.2019. Furthermore, although
the appeal filed by the petitioners in the year 2019, the order was passed on
12.04.2021 and communicated to the petitioners on 13.04.2021. But, there
was a mandate under paragraph 32 of the Control Order 2013 that such
order should be passed within two months. In the intervening period the
business of the petitioners was stopped and/or collapsed due to issuance of
impugned termination order. As such, the said mandatory sixty days
specified in paragraph 32 of the Control Order 2013 was having civil
consequence and as such, the said statutory period stated in paragraph No.
32 in Control Order was mandatory and not directory. In paragraph 7 of the
Affidavit-in-Opposition, the respondents said these were all matter of
records and anything contrary to and/or inconsistent with the record were
denied and disputed in reference to paragraphs no. 1, 2, 3, 4 of the writ
petition when in the paragraph no. 3 the petitioners had stated no
inspection report till date had been supplied to the petitioners all other
paragraphs in said Affidavit-in-Opposition were nothing but categorical
denial which was nothing but nugatory. It was clear that the respondents
had not considered at all the Control Order, 2013. In respect of the contents
of the writ petition, the petitioners relied on the following judgments - (a)
(1991) 3 SCC 38 (Union of India & Ors. Versus E.G. Nambudiri); (b) (1986) 2
SCC 769 (Comptroller and Auditor General of India, Gian Prakash, New
Delhi and Another versus K.S. Jagannathan and Another; (c) (1990) 2 SCC
48 (Management of M/s. M.S. Nazzy Bharat Engineering Co. Ltd. versus
State of Bihar and Others.
3. Learned counsel appearing on behalf of the State respondents
submitted as follows. An inspection was conducted by a team consisting of
six members (i) District Controller, Food & Supplies, South 24 Paraganas;
(ii) Sub-Divisional Controller, Food & Supplies, Canning; (iii) Two inspecting
staffs of District Controller, Food & Supplies, South 24 Paraganas; (iv) Two
inspecting staffs of Sub-Divisional Controller, Food & Supplies, Canning to
the M.R. Distributor point M/s. Sudhir Chandra Das and Sons, MR
Distributor, Post Office and Police Station - Gosaba, District - South 24
Paraganas on 14.03.2018 and at the time of inspection, several
discrepancies were found. On the basis of such inspection, a show cause
notice dated 23.03.2018 was issued by the Licensing authority i.e. the
District Controller, South 24 Paraganas, Food & Supplies, Government of
West Bengal and same was served to the writ petitioner. In the said show-
cause notice, the same discrepancies were found. If one compared the
irregularities incorporated in the show-cause notice dated 23.03.2018 with
those irregularities incorporated in the inspection report, it was crystal clear
that even if such inspection report was not served to the writ petitioner
herein at the time of filing his reply against such show-cause notice, no
prejudice had been caused to the writ petitioner herein since the
irregularities in both the show cause notice as well as the inspection report
were the same. By not supplying of such inspection report to the writ
petitioner herein, there was no breach of natural justice. In other words the
failure to supply such alleged enquiry report to the writ petition herein
would not ipso-facto result in the proceedings being declared null and void
and the order of punishment nonest and ineffective. It was for the writ
petitioner herein to plead and prove that such purported non-supply of
inspection report had caused prejudice and resulted in miscarriage of
justice. In this case the writ petitioner was unable to satisfy the Hon'ble
Court on that point. The order of termination as well as imposition of fine
could not automatically be set aside. Reliance had been placed in that
regard on (2011) 2 SCC 316 paragraph 41 and (2003) 6 SCC 401. As per
paragraph no. 31 i.e., the procedure for dealing with the irregularity of
distributorship of the Control Order, 2013, there was clear mention of the
power invested with the District Controller to issue the show-cause notice as
well as the suspension order against the erring personnel like the writ
petitioners herein and therefore, the District Controller being the Licensing
authority as per the provisions incorporated in the Control Order, 2013, had
got authority to take recourse to law as stated above. So far the point no. (d)
was concerned, a reading of paragraph 32 of the Control Order, 2013 was
required. Whether a statutory functionary was asked to perform a statutory
duty within the time prescribed therefor, the same would be directory and
not mandatory and the paragraph 32 of the Control Order, 2013 was
procedural in nature. In the provisions incorporated for Appeal i.e.,
paragraph 32 of the Control Order, 2013 it was stated that the Director
shall, as far as practicable, dispose of the appeal within a period of 60 days
from the date of receipt of the appeal after giving the person like the writ
petitioner herein a reasonable opportunity of being heard and there was no
negative words in the said appeal provisions and the said provisions for
appeal were to be treated as procedural. A reasonable opportunity of hearing
was given to the writ petitioner herein as would be evident from the order of
the District Controller passed on 21.05.2018, the order/decision of the
Director, District Distribution Procurement & Supply, Department of Food
and Supply, Government of West Bengal dated 15.11.2019 as well as the
decision of the Secretary, Department of Food and Supply, Government of
West Bengal dated 12.04.2021. All such statutory Appellate Authorities had
concurred with the findings of the order/decision of the District Controller,
Food and Supply, South 24 Parganas in terminating the licence of the writ
petitioners as well as imposition of fine in terms of the statutory provisions
and there was a reflection in the order of the authorities that there was an
admission of guilt on the part of the representative of the writ petitioners
herein at the time of hearing in connection with the charges incorporated in
the show-cause notice. Reliance had been placed with regard to procedural
provisions was held to be a directory one for which citation of (2011) 4 SCC
306 and (2003) 8 SCC 498. As per clause 31(C) of the Control Order, 2013,
the District Controller, Food & Supply Department, South 24 Parganas gave
the licensee i.e. the writ petitioners herein an opportunity of hearing and
after hearing, the submissions being made by the representative of the writ
petitioner therein and after going through the relevant records pertaining to
such case, passed a reasoned order on 21.05.2018 thereby, terminated the
licence of the writ petitioners herein and also imposed a fine considering the
gravity of the offence and while imposing such fine, the District Controller,
Food and Supply, South 24 Parganas with the approval of the concerned
District Magistrate come to a figure in terms of fine amounting to Rs. 39, 00,
21, 345/- and such imposition of fine was modified by the order of the
Director, District Distribution, Procurement & Supply, Department of Food
& Supply, Government of West Bengal to an amount of Rs. 34,56,21,025.17
in terms of his order dated 15.11.2019 and such imposition of fine as stated
above, at the behest of the District Controller, Food & Supplies, South 24
Parganas was in conformity with the statute particularly, Clause 31(c) as
well as Schedule-'B' of the Control Order, 2013.
4. I heard the learned counsels for the parties and perused the writ
petition, the affidavits and the written notes of submissions.
5. It is a settled position of law that this Court cannot sit in appeal over
the impugned orders and meticulously weigh the evidence and/or materials
available. This Court will only exercise its jurisdiction if there is a violation
of principles of natural justice or the impugned orders are absolutely
perverse on the face of them.
6. The first point taken up by the petitioner on the question of violation
of principles of natural justice is that proper opportunity of hearing was not
given in as much as the Inspection Report was not supplied.
7. At the time of inspection the following discrepancies were allegedly
found -
SL. Irregularities Violation of PDS
No. Control order
1. Absence of rate board and stock board in the Para 29 [1(b), (c)] of
godown of the M.R. Distributor. PDS Control Order &
Licensing condition of
SL. No. 5.
2. Proper stock taking cannot be done as Stock Para 29 (3) of PDS
was not in a countable position maintaining Control Order.
all the formalities in the godown of the M.R.
Distributor.
3. Many rice and wheat bags had been heaped Para 29 (9) of PDS
in front of gate of the godown and apparently Control Order.
the quality of rice of those bags was poor.
4. Did not maintain door-step delivery of PDS Licencing condition of
commodities properly to his tagged dealers SL. No. 2.
within the stipulated period.
8. In the show-cause notice dated 23.03.2018 issued by the District
Controller, the same discrepancies were shown to have been found. In other
words, not only did the show cause notice make a clear reference to the
inspection, but it also incorporated everything that the Inspection Report
contained. Therefore, at least on this score, the petitioner cannot claim that
he suffered any prejudice for non-supply of the Inspection Report.
9. Moreover, in terms of paragraph 31 of the Control Order, the District
Controller was empowered to issue the show cause as well as the
suspension order against an erring distributor.
10. The expression "shall, as far as practicable, dispose of the appeal" as
present in paragraph 32 of the Control Order essentially renders the
provision directory and not mandatory. This is besides the fact that the said
provision deals with procedural law.
11. Therefore, it cannot, by any stretch of imagination, be held that there
was any violation of principles of natural justice committed by the
respondent authorities in arriving at the impugned findings.
12. It would not be out of context to mention herein that the allegations
levelled against the petitioners were quite serious and thus, needed to be
dealt with appropriately.
13. It is neither necessary nor always practicable to set out a straight-
jacket formula for arriving at a fine in all cases of departmental action. Nor
does it mean that in absence of any such specific formula, no fine can be
imposed. On the contrary, that the fine was imposed after taking into
account the gravity of the wrong-doing, in conformity with Clause 31(c) and
Schedule B of the Control Order and with the approval of the District
Magistrate, appears to be a quite sound methodology. In fact, the fine was
subsequently modified by the order of the Director, District Distribution.
14. In view of the above discussions, this Court finds no reason to
interfere with the impugned orders.
15. Accordingly, the writ petition is dismissed, however, without any order
as to costs.
16. Urgent photostat certified copies of this judgment may be delivered to
the learned Advocates for the parties, if applied for, upon compliance of all
formalities.
(Jay Sengupta, J.)
S.M
