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Judgment
S.K. Gupta, J.—Counter has not been filed. Mr. S.S. Nanda, learned Sr. CGSC submitted that the objections already filed in detail be
treated as counter Prayer allowed.
With the consent of learned counsel appearing for respective parties, the petition is taken up for final hearing.
Petitioner was allotted contract for the supply of frozen meat for the year 2002-03 on the strength of a contract hearing No. CD-99 dated 18-
4-2000. In pursuance of the contract, the petitioner was required to supply 11 lacs kg of frozen meat during the contract period. The petitioner
accordingly started the supply of frozen meat as per the approved items. The entire necessary arrangements and requisite infrastructure were
required to be made by the petitioner contractor in performance of the contractual obligations. The petitioner contractor strictly followed the
procedure as per the terms and conditions of the agreement. It is further submitted that after procuring the live stock, it is made available to the
Supply Officer for antic mortem at the SC Butchery by the Veterinary Doctors of the respondents. Thereafter, such anti-mortem live stock is duly
branded and segregated from the remaining live stock which is kept in the pipeline for further supply. The former is sent for slaughter to the
slaughter house and the same is again carried out in presence of the Veterinary Doctors and the Supply Officers. After slaughtering, the meat is
kept in the room provided for the purpose under the custody of officers of respondents and the same is duly sealed by the said officers. It is further
stated that again the team of same officers break open the seal next day and carry out the post-mortem examination of Carcasses and each
Carcass is stamped by the Veterinary Doctor and his attendants after it is found fit for human consumption by the doctor. According to the
petitioner, the Carcasses, duly stamped by the Veterinary Doctor, are loaded in a insulated van in presence of the officers and after it is duly
locked, is transported from the Butchery Reezing Plant under the escort of the officers of the respondents. No other person or representative of
the petitioner-contractor sits in the van except the driver of the vehicle. It is also stated that after the van reaches the Cold Storage, the Incharge of
the butchery. JCO and NCO hands over the Carcasses to JCO Incharge of the plant against proper receipt in respect of counted number of
Carcasses. The same are, thereafter, put in the chilling chamber for an overnight for removal of latent heat and the chilling room is sealed by the
JCO Incharge of the plant. Again the chilled Carcasses are re-inspected by the Veterinary Doctors and thereafter the meat is packed and weighted
in presence of JCO Incharge of the Chilling Chamber and Veterinary Doctors of the respondents. Thereafter the packed meat is kept in the blast
freezing chamber for frozen of meat at a temperature of minus 40 degree centigrade and the chamber is locked and sealed by the staff of 603 ASC
Bn. and the keys remain with them. The petitioner further submitted that the entire process of cutting, packing and transportation is carried out
under the supervision of respondents right from the time the live stocks are handed over to them by the petitioner and the entire domain, practical
or physical, thereafter remains with the respondents to the exclusion of the petitioner or his agents till the dispatch of such meat to the air field for
mounting base. The petitioner further submitted that at no point of time the supply remains abandoned or within the physical control of petitioner
during this time. The petitioner, is, however, aggrieved of communication dated 11-1-2003 by which he was informed about the mixing of 15 kgs
inedible offal in 500 kgs frozen meat dispatched from 603 ASC Bn. to FSD Lch on 9-5-2002. The petitioner clarified that it was impracticable
and unimaginable to find a portion of the meat as inedible in view of the explained procedure carried out in presence of their officers, but was
without any positive respondents without affording an opportunity to the petitioner to explain his conduct, removed the firm of petitioner from the
approved list of ASC Contractors vide Order No. 30704/A-09/ST5 dated 17-4-2003, which the petitioner seeks to quash, by issuance of a writ
in the nature of certiorari in invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the
Constitution of Jammu and Kashmir. The trouble, however, according to the petitioner started on account of inter se differences of two officers of
the armed forces at the dispatch and receiving end of the supplies.
The respondents filed a detailed counter and submitted that though nobody sits in the vehicle with the driver at the time of transportation, but the
vehicle belongs to the contractor and any malpractice, if intended, can be done during the journey period to mix the pieces of inedible meat in the
meat packets. It is further contended that the entire process of cutting, packing and transportation is handled by the employees and labourers of the
petitioner contractor and probably the pieces of inedible offal are mixed at this stage. The respondents, however, submitted that though the entire
process is commenced and carried out till end under the supervision of army personnel, but if the petitioner intended to mix pieces of inedible offal
it could be possible at the cutting and packing stage without having been noticed by the army personnel. When frozen meat is once unpacked, it
could not be kept waiting for arrival of the petitioner or his representative as the same would have petrified and perforce had to be destroyed. That
the petitioner is having contacts with the army for the last so many years and the allegation against the officers with regard to their character and
reputation is only with a view to justify his misdeeds and malpractices. The case of the petitioner was thoroughly examined and considered before
the issuance of removal order and is fully justified in the facts and circumstances of the cases.
I have heard the arguments advanced by the learned counsel appearing for the respective parties and perused the record meticulously.
It is not in dispute that the entire process of cutting, packing and transportation of frozen meat right from the stage of supply of live stocks to the
respondents is carried out under the supervision of the officers of respondents. The cutting and packing of frozen meat is also done in presence of
Veterinary Doctors and Supply Officers of respondents. It is not disputed by the respondents that at no point of time, the frozen meat/supply
remained abandoned so as to give a chance of mixing of inedible offal into the packets of meat to the petitioner. Even at the time of transportation,
there is only a driver in the vehicle which is sealed by the officers of respondents and is accompanied by the escort, which manifestly rules out the
possibility of any mixing of inedible offal during this period. It is said so because no other person sits in the vehicle during transportation. For mixing
of inedible offal into the packets, it requires a full exercise of opening the packets, resetting after mixing and then again resealing the packets, which
cannot be done by a driver himself unless there is somebody else in the vehicle. The entire procedure in detail has been indicated by the petitioner
from paras 8 to 18 of the writ petition and not disputed by the respondents in their demurrer. The process is so foolproof that it does not leave any
moment/occasion, so as to give an opportunity to the labourers of petitioner contractor to add/mix the pieces of inedible offal into the packets of
frozen meat. Assuming that there is a probability of such mixing of inedible offal into the packets during cutting and packing by the labourers, this
could very well be detected and pointed out by the Veterinary Doctors at the time of inspection and re-inspection, and particularly in chilling
chambers, where the frozen meat is kept at particular temperature prior to its dispatch and the keys remain with the officers of respondents. All
these facts, when taken into account in totality, make it abundantly clear that after supply of live stock, no control, practical or physical, remains
with the petitioner contractor during all this process till the last moment.
It is further pertinent to point out that the plea taken by the respondents is not specific as to when and where and in what situation the petitioner
managed to smuggle the pieces of inedible offal into the packets of frozen meat. The stand of respondents is only on the basis of probabilities and
possibilities and on hypothetical basis. For facility of references, the relevant paras of their reply read as under :
That in reply to the averments of para No. 12 of the petition it is respectfully submitted that except the driver nobody else sits in the vehicle.
However, the vehicle and driver belong to contractor in this case the petitioner. Thereby any malpractices if intended can be done during the
journey period of smuggle pieces of inedible offal.
That in reply to the averments of para No. 15 of the petition it is respectfully submitted that after chilling and inspection the Carcases are cut in
pieces and packed in 5 kilograms packets five such packets are packed in one bag of 25 kilograms. This complete process of cutting and packing
is handled by employees and labourers of the contractor (the petitioner). Probably the inedible offals were mixed at this stage by the
employees/labourers of the petitioner on his behest. This process of cutting and packing has been intentionally missed out by the petitioner to
mislead the Hon'ble Court.
That in reply to averments of para No. 18 of the petition it is respectfully submitted that though the Army personnel are present during the
whole process, the petitioner would have found the ways and means to mix the inedible offals at the cutting and packing stage avoiding the sight of
the Army personnel. It is clear that if the intention of the petitioner was to mix the inedible offals it would have been possible at cutting and packing
stage without having been noticed by the Army personnel.
The respondents in para 18 of their reply have unambiguously stated that during the whole process the army personnel remain present, but still
their stand is that if the petitioner intended to mix the pieces of inedible offal, it was possible at the time of cutting and packing stage in escaping the
attention of army personnel. It is further borne out from the aforesaid plea taken in their reply by the respondents that mixing of inedible offal,
probably, could have been done during journey period. This manifestly shows that the stand of respondents is neither specific nor definite, but
based on probabilities and hypothetical plea. This stand of respondents based on probabilities itself automatically is ruled out when it is admitted
and stated in unequivocal terms by the respondents in para 18 , referred to above, that the entire process of cutting, packing and transportation,
right from the beginning till end, is done under the supervision of army personnel. Further the possibility of mixing pieces of inedible offal into the
frozen meat packets is ruled out when it is admitted by the respondents that during journey only the driver sits in the truck which is sealed by the
army personnel after the meat packets are loaded in it, followed by their escort. The possibility of mixing or smuggling of inedible offal into the
frozen meant packets is further ruled out when at the destination point the seals of the truck are opened by the officers of respondents and the
packets are unloaded from the truck without complaining about the seals or the locks of the truck found broken by such officers. It is also not the
case of respondents that at any point of time, either the seals of packets containing the frozen meat or the seals of the truck in which these were
loaded or the locks of the truck of the truck were found broken at the place of destination by the supply officers. The plea of the respondents
evidently appears to be based on figment of imagination, on probabilities and possibilities. Such pleas taken are also vague and void, not specific
but evasive. In such circumstances, the Court is left with no option but to accept the correctness of the statements made in the petition. This is
further strengthened from the fact that neither the petitioner nor his representatives were ever called at the time frozen meat was unpacked and
found to have been mixed with pieces of inedible offal, and is stated to have been destroyed by the respondents on their own. Admittedly, the
petitioner has not been given an opportunity to be present at that time and explain what is stated to have happened before taking an adverse
decision against him by removing him from the list of approved contractors on the basis of frozen meat having been adulterated with pieces of
inedible offal on the opening of packets to which the petitioner was not a party. The petitioner, therefore, in this case, has been evidently
condemned unheard and is a clear violation of principle of audi alteram partem as is provided under Order 8, Rule 5, CPC.
Right to be heard before any adverse decision is taken against the petitioner, is a civil right which cannot be taken away or even curtailed except
in accordance with law. Admittedly, before passing the order impugned, no opportunity of being heard was afforded to the petitioner by the
respondents. No notice was issued to the petitioner contractor or his agents and he was not given an opportunity to represent his case in regard to
the inedible offal stated to have been found in the frozen meat packets on opening, and passed the order impugned which cannot but be an
arbitrary order. As such, the order impugned suffers from the vice of violation of principles of natural justice and is, thus, not sustainable in law, is
held by the Supreme Court in AIR 2002 SC 2423 . Even on facts and looking to the reply filed by respondents, it is clearly discernible that the
pleas taken are too void, indefinite and vague, based on probabilities and chances, being a figment of imagination, unbelievable and unacceptable.
This is said so because the whole process of supply is commenced and carried out right from beginning to end under the strict supervision of army
personnel of respondents. The process is so foolproof that it rules out any chance of smuggling of inedible offal into the packets at any point of
time. The pleas raised by Mr. Nanda, Sr. CGSC, on any factual aspect of the matter, mostly relate to the procedure adopted by the army
authorities during all this exercise of cutting, packing and transportation of frozen meat to have not been left, at any time, without supervision of the
respondents, cannot be accepted being devoid of legal force and bereft of any substance. It is further neither understandable nor explained and
clarified by Mr. Nanda during arguments, as to when the entire process was conducted in the presence of army personnel leaving no chance of
interference by third person, by it was not thought to hold an inquiry into the matter, particularly when serious allegations have been levelled against
their officers who were present throughout in the exercise and, instead, had taken a lop sided view in issuing a removal letter to the petitioner and
attributed the acts of omission and commission to the petitioner firm for vitiating the process of operation of contract. The action of respondents is,
therefore, held arbitrary, unreasonable , irrational, in breach of principles of natural justice and, thus, violative of fundamental right of petitioner
under Article 14 of the Constitution of India.
Taking conspectus of the aforesaid facts and circumstances, I allow the petition, quash and set aside the order impugned bearing No.
30704/A-09/ST5 dated 17-4-2003, whereby the name of petitioner No. 1 has been removed from the approved list of ASC Contractors in the
Headquarter Northern Command.
In the peculiar circumstances of this case, the parties are left to bear their own costs.
Disposed of.