M/s Sitaram Agarwala vs The State of West Bengal

Samapti Chatterjee, J.—The petitioner has filed the present writ petition assailing the impugned cancellation order issued under Memo No. 1989/1(18)/DCF(M) dated 10th August, 2015.

The brief case of the petitioner is as follows :-

2(i). That the petitioner firm was appointed as a MR distributor by the respondent no. 5 in terms of the power conferred upon him by an administrative order, since there was no existence of any control order at that relevant point of time., therefore, after introduction of West Bengal Public Distribution System (Maintenance and Control) Order 2003, the petitioner no.1 obtained the licence under the said control order which was renewed from time to time and lastly was valid upto 31st January, 2014. The said control order 2003 was repealed and a fresh control order 2013 has come into force.

2(ii). Accordingly the petitioner after expiry of the validity of the said licence obtained the licence under control order 2013 in the year 2014 which has been renewed and was valid till 31st December, 2014. That on 25th June, 2015 the Central Vigilance Squad of the Food and Supply department carried out inspection at the business premises of the petitioner and the stock position was assessed on the basis of eye estimation.

2(iii). Thereafter, the Central Vigilance Squad drew up the report indicating both the Book balance and the physical balance. And subsequently, some other officers came on 26th June 2015 and prepared another chart in tune with the report of Central Vigilance Squad.

2(iv). Accordingly on 29th June, 2015, the petitioner was served with a show cause notice against which a tentative reply was sent by the petitioners on the 3rd July, 2015. In the reply the petitioner prayed for supplying the documents in support of the show cause notice dated 29th June, 2015 so that the petitioners may file a effective statement of defence. But without supplying the documents as prayed for and without giving an opportunity of hearing as contemplated under Clause 31 (c) of the West Bengal Public Distribution System (Maintenance & Control) order 2013 the District Controller passed the impugned order dated 31st July, 2015 and 10th August, 2015 thereby terminating the distributorship of the petitioner.

2(v). Hence, the present writ petition.

Mr. Kalyan Kumar Bandyopadhyay learned senior counsel appearing for the petitioners strongly submitted that no physical verification was at all made by the respondent authorities. Only on the basis of the eye estimation the impugned show cause notice was issued which is bad in law.

Mr. Bandyopadhyay also submitted that it has not been demonstrated as to how the DCFS arranged for labour on 26th June, 2015 in such a short time and wherefrom he paid the charges for labour for such weighment.

Mr. Bandyopadhyay also vehemently argued that no copy of the so called physical verification being Annexure R-1 has ever been supplied to the petitioner. Mr. Bandyopadhyay also demonstrated that the said alleged report of the physical verification does not bear the signature of the petitioners or their representatives or any independent witnesses.

Mr. Bandyopadhyay further strongly demonstrated that the report of the so called physical verification is nothing but a concocted/manufactured one, therefore, question of bearing petitioners signatures on the report of the so called physical verification does not arise. Since the same were tailored.

Mr. Bandyopadhyay vehemently argued that first time in the affidavit-in-opposition the so called physical verification report has been disclosed by the respondent authorities but Mr. Bandyopadhyay strongly emphasised on the point that no physical verification was ever conducted by the respondent authorities.

Mr. Bandyopadhyay strongly argued that the impugned order is a product of bias, caprice and has been passed in violation of principles of natural justice, in colorable exercise of power and contrary to the provisions of 2013 control order, therefore, the same is arbitrary, malafide and is liable to be set aside and quashed by this Hon�ble Court. In support of his contention Mr. Bandyopadhyay relied on a Hon�ble Apex Court decision reported in AIR 1964 SC Page 364(Union of India v. H.C Goel) Paragraph-27 Some extract of Para-27 is quoted below :-

"Para-27-******��*****Though we fully appreciate the anxeity of the appellant to root out corruption form public service, we cannot ignore the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof even in domestic enquiries. It may be that the technical rules which govern criminal trials in courts may not necessarily apply to disciplinary proceedings, but nevertheless, the principle that in punishing the guilty scrupulous care must be taken to the see that the innocent are not punished, applies as much to regular criminal trials as to disciplinary enquiries held under the statutory rules. We have very carefully considered the evidence led in the present enquiry and borne in mind the plea made by the learned Attorney General, but we are unable to hold that on the record, there is any evidence which can sustain the finding of the appellant that charge No.3 has been proved against the respondent. It is in this connection and only incidentally that it any be relevant to add that the UPSC considered the matter twice and came to the firm decision that the main charge against the respondent had not been established."

8(i). Mr. Bandyopadhyay in support of his contention that against the illegal and arbitrary action on the part of the respondent authorities and also against the violation of natural justice the petitioner has a right to challenge the same before this Hon�ble Court by filing an application under Article 226 in spite of the fact that there is an alternative remedy, he relied on a Hon�ble Apex Court decision reported in 1998 (8) SCC Page-1 (Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others) Paragraphs-14 and 15 which are quoted below :-

"Para-14-The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision and the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part-II of the Constitution but also for "any other purpose."

Para-15-Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

Mr. Bandyopadhyay also relied on a Hon�ble Apex Court decision reported 2007 (9) SCC Page-593 (Popcorn Entertainment And Another v. City Industrial Development Corpn. And Another).

Per contra, Mr. Amitesh Banerjee, learned Advocate appearing for the State submitted that on 25th June, 2015 a Central Vigilance Squad arrived at the District to conduct inspection and accordingly the petitioner no.2 was informed that there would be an inspection of his godown at 12:30 hours and he was requested to remain present in the godown at the scheduled date and time.

Mr. Banerjee further contended that the findings submitted by the head of the Central Vegilance Squad Sri Raju Mukherjee, the Deputy Director in the Directorate of consumer goods Food and Supply departments inter alia found that none of the godowns were hyginically maintained, food was stored in an improper manner and food belonging to different PDS schemes were kept amalgamated in utter contravention of Paragraph 29 (3) of the Control Order, 2013. It was also found that the sacks of rice failed to have any WQSC number suggesting that stocks from the state godown have been replaced and after the physical verification of the commodities a huge shortage was detected in the physical balance of the commodities against the book balance apart from other regularities. As a result thereof accordingly, the show cause notice was issued on 3rd July, 2015.

Mr. Banerjee further contended that on the basis of the report of the physical verification show cause notice was issued. Accordingly, after the issuance of show cause notice the petitioners submitted their written reply and thereafter a prolong proceedings was initiated by the authority against the petitioners. Every time the petitioner refused to sign any document and ultimately on 10th August, 2015 the petitioners licence was terminated by the District Magistrate, Malda.

Mr. Banerjee vehemently urged that no violation of natural justice has ever been committed by the respondent authorities before passing the impugned order dated 10th August, 2015 as has been projected by the Mr. Bandyopadhyay, learned counsel appearing for the petitioners.

Mr. Banerjee further contended that since there is no violation of natural justice and since after being satisfied with the physical verification report the show cause notice was issued by the authority and the authority was not at all satisfied with the reply used by the petitioners against the show cause notice of the petitioners, as a result thereof the impugned order of termination was issued.

Mr. Banerjee further contended since after following the procedure as well as principles of natural justice the impugned order of termination dated 10th August, 2015 was issued therefore there is no scope to file the present writ petition and if the writ petitioners are at all aggrieved by the impugned termination order then he has to challenge the said order of termination by filing statutory appeal before the appellate forum which admittedly the petitioner chose not to do so.

14(i). That being the scenario Mr. Banerjee submitted that the impugned order of termination which has been issued after following the procedure and after complying the principle of natural justice does not deserve any interference by this Hon�ble Court, therefore, this writ petition should be dismissed.

Considering the submissions advanced by the learned Advocates appearing for the respective parties and after perusing the records and the decisions relied on by the learned Advocate I find that Paragraph 29 (5) of 2013 control order provides that distributor shall render all facilities for physical verification of stocks under Public Distribution System on demand by the inspecting Officers but in the present case the said officers did not demand any facilities for physical verification of stocks from the petitioners. On the contrary it is evident that the officers chose to record the stock on eye estimation basis which is not at all permissible under law.

It is also evident from the records that allegation of shortage in the stock is contrary to the sheet prepared at the spot and the show cause notice.

16(i). I also find substance in the submission of Mr. Bandyopadhyay that the show cause notice was based on the counting of foodgrains on the eye estimation and not on the basis of the 100% weighment underlaw which is an undisputed fact in the present case. In my considered view by not preparing the physical verification chart upon weighment of each bag the authority has acted against the provision of 2013 control order.

I cannot ignore the provision contemplated under Paragraph 30 (f) of 2013 control order which inter alia mandates that authorities would prepare weighment chart and chart of physical verification stock which is completely lacking in the present case.

It is admitted fact that in the said physical verification report appearing on Annexure R-1 does not bear any signature of the petitioner or any signature of any witness.

Considering the above discussion I have no hesitation to hold that the impugned order dated 10th August, 2015 cannot be sustained in the facts and circumstances of this case.

Accordingly the impugned order dated 10th August, 2015 is hereby quashed and set aside. Since the order dated 10th August, 2015 is quashed and set aside therefore all the documents like physical inspection report dated 26th June, 2015 first time disclosed in the affidavit-in-opposition and the show cause notice dated 29th June, 2015 suspension order dated 6th July 2015 in relation thereto are also hereby quashed and set aside.

This writ petition is allowed accordingly. However, no order as to costs.

Urgent photostat certified copy of this judgment, if applied for be supplied to the parties after fulfilling all the formalities.