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Judgment
The short point involved in the matter is whether the proceedings could be declared as abandoned when admittedly the authority failed to proceed as per Paragraph-9 of the West Bengal Kerosene Control Order 1968 read with Paragraph-9 (vi) of the West Bengal Kerosene Control Order, 1968, since amended on 3rd November, 2014.
The petitioners'' case in brief is as follows :- The petitioner no.1 is a partnership firm and petitioner no.2 is a member of the petitioner no.1 and carries on business of kerosene oil by virtue of two licenses under West Bengal Kerosene Control Order 1968 by distributing kerosene to the dealers in District of Paschim Midnapore, having three depots at (1) Jhargram (2) Lodhasuli and (3) Kharagpur. On 5th December, 2013 the SCFS, Jhargram directed the petitioners to produce several books of accounts for the period from April 2010 to October, 2013. On 10th January, 2014 the petitioners duly submitted the stock-cum-sale registers for Lodhasuli and Jhargram for the period from April 2010 to December 2013 to the SCFS, Jhargram. On 29th August, 2014 the Director of Consumer Goods issued one order thereby suspending the petitioners'' licenses however the said order was withdrawn by the authority. On 2nd September, 2014 the petitioner filed writ petition challenging the said order and memo. The said petition being W.P. No. 25305 (W) of 2014 was disposed of by this Hon''ble Court as the learned counsel appearing on behalf of the State submitted that both the order and memo have been withdrawn by the authority. The petitionerS, through their Learned Advocate, requested the concerned authorities to allow the petitioners to continue with their business of kerosene as before.
In the afternoon hours, the petitioners'' representative went to the office of the Sub-Divisional Controller, Food and Supplies, Jhargram, for allotment to lift SKO.
The Director of Consumer Goods, West Bengal, issued a memo informing the District Controller of Food & Supplies, Paschim Medinipur (in short "DCFS") that the show cause notice-cum-suspension order dated 29th August 2014 has been withdrawn and directed the SCFS, Kharagpur and SCFS, Jhargram to start fresh proceedings against the petitioners on charges framed on the basis of purported enquiry report submitted by the vigilance enquiry team from April, 2010 to March, 2013.
On 3rd September, 2014 the petitioners'' representative again went for allotment to lift SKO, where he was detained for a long time and only at about 6:30 p.m. he was asked to go to the office of the DCFS. However, no allotment to lift SKO was taken place.
At about 7:30 p.m. the petitioners'' representative reached the office of the DCFS where he was served with three orders all dated 3rd September, 2014, out of three, two were of the SCFS, Jhargram and one was of the SCFS, Kharagpur, whereby the SCFS, Jhargram, suspended the petitioners'' licence of Jhargram and diverted the allocation of SKO to other agent and the SCFS Kharagpur suspended the petitioners'' licence of Kharagpur.
Challenging the impugned orders all dated 3rd September, 2014 the instant writ petition has been filed.
Hence, the present writ petition.
On 10th September, 2014 the Hon''ble Court passed an interim order directing the respondents not to take any step in respect of the impugned notices dated 3rd September, 2014 for a limited period (appears at Page-11 of the Supplementary Affidavit)
On 12th September, 2014 the petitioners filed a contempt petition, being CPAN 2133 of 2014, for violation of the order dated 10th September 2014 by the SCFS, Jhargram, by not restoring the allocation of SK Oil to the petitioners.
On 24th September, 2014 the Hon''ble Court modified the interim order to the effect that hearing on the basis of show cause notice shall be held in the manner prescribed in the West Bengal Kerosene Control Order, 1968 and directed the interim order to continue until further order. It was also directed that the documents be made availabe to the petitioners on which reliance was going to be placed by the Department (appears at Page-12 of Supplementary Affidavit).
On 29th September, 2014 the SCFS, Jhargram, issued notice of hearing to the petitioners for appearing on 9th October, 2014 (appears at Page-14 of the Supplementary Affidavit).
On 29th September, 2014 the SCFS, Kharagpur, issued a notice of hearing to be held on 13th October, 2014 (appears at Pge-15 of the Supplementary Affidavit)
On 4th October, 2014 the petitioners requested the Sub- Divisional Controller, Jhargram, and also the Sub-Divisional Controller, Kharagpur, to supply the documents, as directed by the Hon''ble Court (appears at Pages- 16 to 19 of the Supplementary Affidavit)
On 9th October, 2014 the petitioner no.2 appeared for hearing before the SCFS, Jhargram, but no documents were supplied to the petitioners by the authority (appears at Page-20 of the Supplementary Affidavit)
On 13th October, 2014 the petitioner no.2 appeared for hearing before the SCFS, Kharagpur, but no documents were supplied by the authorities to the petitioners (appears at Page-21 of the Supplementary Affidavit).
On November, 2014 the petitioners'' allocation of 668 K.L. of SKO as per ration card population was restored by the SCFSs.
On 15th December, 2014 the petitioner filed an interlocutory application, being CAN 12117 of 2014, complaining that the petitioners'' allocation of 668 K.L. of SKO which was restored in November, 2014, has again been curtailed in December, 2014.
On 3rd July, 2015 the contempt petition was disposed of. Thereafter, the authority did not proceed with the show cause notices though the statutory period of 60 days in terms of Paragraph 9 (vi) of West Bengal Kerosene Control Order, 1968 as also the order dated 24th September, 2014 passed by this Hon''ble Court to complete the same as per West Bengal Kerosene Control Order, 1968, expired long back and thereby, the authorities abandoned the proceedings. SUBMISSIONS OF THE LEARNED ADVOCATES
Mr. Saktinath Mukherjee, learned Senior Counsel appearing for the petitioners strongly argued that in respect of show cause notices admittedly there was no stay, in spite of that the Sub-Divisional Controllers failed to proceed with the same thereby abandoned the proceedings by efflux of time.
Mr. Mukherjee further vehemently contended that it is the mandatory provision under Paragraph 9 of the West Bengal Kerosene Control Order, 1968 that the proceedings shall be completed within the stipulated period from the date of service of the notice.
Mr. Mukherjee further drew my attention to some relevant portions of the petition wherefrom it is revealed that the authority initiated the proceedings against the petitioners by issuing show causecum- suspension notices on 3rd September, 2014 and that statutory period expired long back. As the same has not been completed till date, in the result, the authority abandoned the said proceedings. In support of his contention Mr. Mukherjee relied on a decision reported in 90 CWN Page 290 ( Subrata Chaki And Ors vs State of West Bengal And Others) Paragraphs-12 and13 which are quoted below :- "Para-12-It would depend upon the facts and circumstances of each particular case whether because of inordinate delay either to initiate or to conclude the disciplinary proceedings, the same ought to be quashed and such proceedings have been delayed because of the conduct of the delinquent himself, he cannot certainly plead that he had been denied reasonable opportunity because of lapse of time. Again delay would not be fatal in the case the disciplinary authorities remain restrained by order of the court or are prevented by any other sufficient cause from concluding the proceedings. In the instant case, atleast from the date of the disposal of the writ application by the learned Single Judge, there was no injunction upon the respondents from proceeding with the enquiries against the appellants. On the other hand, the learned trial judge had directed that the same be disposed of preferably within three months. The Division Bench in passing interim order in respect of suspension of the appellants had made adverse observation because the respondent had not taken any steps in regard to the disciplinary proceedings. No explanation for the delay of more than five and half years has been furnished either by the Commissioner, Presidency Division, who was to act as the Disciplinary Authority, or by Mr. B. K. Biswas, who was appointed as the Enquiring Officer. Para-13-In the instant case the charges framed in respect of the incident which allegedly occurred at the chamber of the Collector of Calcutta, the respondent no.2, on 3rd March, 1981. In substance, the charge against the appellants was that they, inter-alia, held a violent demonstration. The annexure of the charge-sheet indicated that the charges against the appellants were proposed to be sustained by oral evidence of eight persons. The charge-sheet did not mention any documentary evidence in support of the prosecution case. Presumably, on the basis of the oral evidence the respondents proposed to establish the said charges against the appellants. The appellants are likely to be seriously prejudiced if the disciplinary proceeding against them is now started. We are not prepared to allow the respondents further time to hold enquiry when they themselves have not explained whey they did not hold the disciplinary proceedings for such a long time."
Mr. Mukherjee further vehemently urged that in the present case the authority initiated proceedings against the petitioners by issuing show cause-cum-suspension notices dated 3rd September, 2014 and that show cause notices were not stayed by the Hon''ble Court; the Hon''ble Court by an order dated 24th September, 2014 directed interalia that the hearing to take place without prejudice to the rights and contentions of the parties and subject to further direction or ultimate outcome of the proceedings but the authority intentionally failed and neglected to proceed with the show cause notices against the petitioners by not supplying the documents before the hearing as directed by the Hon''ble Court. Therefore, authority is debarred from proceeding against the petitioners on the basis of show cause notices dated 3rd September, 2014.
Mr. Mukherjee further contended that since no stay was granted by the Hon''ble Court of the impugned show cause notice therefore, it was obligatory on the part of the respondent authority to proceed with the show cause notices but unfortunately in the present case the authority failed to do so. In support of his contention Mr. Mukherjee relied on a decision reported in 2011 (1) CHN (Cal) Page-21 Paragraph-28 ( Commissioner of Central Excise, Kol-II Commissionerate & Anr. Vs Shree Gobinddeo Glass Works Ltd & Ors)
Mr. Mukherjee further strongly submitted that Paragraph 9 read with Paragraph 9 (vi) of the West Bengal Kerosene Control Order, 1968 is a mandatory provision that cannot be treated as directory one.
Mr. Mukherjee contended that the intention of legislature is clear in this regard that before a punishment is imposed the procedure laid down should be strictly followed. But in the instant case the authority failed to follow the procedure as laid down in the West Bengal Kerosene Control Order, 1968.
Mr. Mukherjee further emphasized that Paragraph 9 of the West Bengal Kerosene Control Order, 1968 cannot be described as "Directory" rather it is " Mandatory" since result of proceeding depends on the punishment to be imposed by the authority. In support of his contention Mr. Mukherjee relied on a Hon''ble Supreme Court decision reported in 2009 (7) SCC Page-658 ( Sarla Goel And Others vs Kishan Chand) Paragraphs-28 to 30. Therefore, in conclusion Mr. Mukherjee submitted that the writ petition should be allowed by granting the relief as prayed for.
Ms. Munmun Tewari, learned Advocate appearing for the State submitted that neither Paragraph 9 nor Paragraph 9 (vi) of the West Bengal Kerosene Control Order, 1968 as amended is mandatory one but the same is only directory one. DECISION WITH REASONS
After considering the submissions advanced by the learned Advocates appearing for the parties and after perusing the records and the relevant paragraphs of the West Bengal Kerosene Control Order, 1968, I am of the view that it is the mandatory requirement on the part of the respondent authority to complete the proceeding within the statutory period since result of the proceeding depends on the punishment to be imposed by the authority. In my opinion, if it is a discretionary one then it might have been mentioned under the Paragraphs as referred to.
In my considered view since this Court interalia directed the authority to take hearing upon making the document available to the petitioners and not to give effect to the orders which may be passed in course of such hearing without leave of the Court, no stay has been granted on show cause notice by any Court of law and not only that statute prescribed that proceedings shall be completed within sixty days from the date of issuance of the show cause notice. Therefore, it is obligatory on the part of the respondent authority to proceed with the said show cause notice but admittedly the respondent authority failed to do so. It is also not out of place to mention that the Hon''ble Court modified the interim order to the effect that hearing on the basis of show cause notices shall be held in the manner prescribed in the West Bengal Kerosene Control Order, 1968 and directed the interim order to continue until further order. It was also directed that the documents be made available to the petitioners on which reliance is going to be placed by the Department. Therefore, at this stage the respondent authority cannot take the plea that since the matter was pending before the Hon''ble Court, the authority did not initiate any proceedings against the petitioners on the basis of the show cause notice dated 3rd September, 2014.
In my considered view the word "Lapsed" should be read as abandoned particularly when a statute prescribed certain criteria to be followed in a particular manner it shall be complied with by the authority in that manner only. Therefore, in my opinion "Power" becomes a duty and "May" becomes "Shall".
In my opinion when occasion arises to exercise the power but the authority failed to exercise the power conferred under the statute, the same implies that the proceeding has been abandoned with the lapse of time.
Considering the discussions, above I hold that it is apparent from the conduct that the respondent authority has abandoned the proceedings which also lapsed by efflux of time as provided under Paragraph-9 read with Paragraph 9 (vi) of the West Bengal Kerosene Control Order, 1968 as amended and that the statutory mandate as prescribed thereunder has not also been followed. That being the scenario, I have no hesitation to hold that the show cause notice-cumsuspension orders being Memo No.414/JFS/14, 415/JFS/14 & 586/SCFS/KGP/14 all dated 3rd September, 2014 issued on the basis of memo dated 2nd September, 2014 have lost its force by efflux of time as well as by conduct of the authority, therefore, cannot be sustained in the eye of law and in the facts and circumstances of the case.
Accordingly, impugned show cause-cum-suspension notices both dated 3rd September, 2014 issued by the Sub-Divisional Controller, Food & Supplies, Jhargram and Sub-Divisional Controller, Food & Supplies, Kharagpur are hereby quashed and set aside.
This writ petition is allowed however no order as to costs.
Accordingly, CAN 12117 of 2014 is also allowed by directing the authority to restore the petitioners'' status by re-tagging the dealers as was existing before impugned notices and to allot SKO at present scale.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties after fulfilling all the formalities.