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Judgment
M. Katju, J.—This writ petition has been filed against the impugned order dated 26/27.3.2003 (Annexure-3 to the writ petition) by which the Petitioners have been placed in the black list.
Heard learned Counsel for the parties.
It is alleged in paragraph 3 of the petition that the Petitioners are authorised transporters having rendered services to Pradeshik Co-operative Dairy Federation Limited, Lucknow (P.C.D.F.) since 1994. It is alleged that during this period there was no complaint against the Petitioners. There is another transporter, namely, Jai Maa Durga Road Lines, Ramnagar Road, Parao, Chandauli, and Sri Shiv Prasad Gupta alias Dabbu S/o Dev Nath Gupta alias Muneem, r/o Mukimganj, Varanasi, is the proprietor/owner of that firm. On 25.12.2002, the P.C.D.F., Varanasi, is said to have hired Jai Maa Durga Road Lines for transportation of 300 bags cattle feed and the goods are said to have been delivered to the said transporter for M/s. Manoj Kumar Pankaj, Bhulwari Sarif, Patna (vide Annexure-1 to the petition).
Since the goods were not delivered at Phulwari Sarif, Patna in time, hence on an inquiry the P.C.D.F., Limited came to know that the goods were not made available to M/s. Manoj Kumar Pankaj. The said transporter was immediately contacted but since there was no satisfactory reply an F.I.R. was lodged on 28.1.2003 at about 11.00 p.m. u/s 407, I.P.C. against Shiv Prasad Gupta (vide Annexure-II to the petition).
It is alleged in para 7 of the petition that Jai Maa Durga Road Lines is not an authorised transporter. The local unit (Cattle Feed Factory, Industrial Area Ramnagar, Varanasi) had hired Truck No. U.P. 63A-6055, and on a holiday, i.e., 25.12.2002, 300 bags cattle feed were delivered to Jai Maa Durga Road Lines for M/s. Manoj Kumar Pankaj, Phulwari Sarif, Patna. It is alleged in paragraph 8 of the petition that the aforesaid Truck is owned by an influential officer of the transport department posted in Varanasi, and it was only to save the skin of the said officer that the transporter Jai Maa Durga Road Lines has taken a somersault and it has denied that any truck was hired by the said transporter.
It appears that to enquire into the incident dated 25.12.2002, a three member committee was constituted and a report is said to have been submitted by the said Committee. On that report, the impugned order has been passed (vide Annexure-III to the petition).
The main argument of Sri Ashok Khare, learned senior counsel for the Petitioners is that the impugned order has been passed without giving opportunity of hearing to the Petitioners as alleged in paragraphs 11, 12 and 17 to the petition.
A perusal of the impugned order dated 26/27.3.2003 (Annexure-III to the petition) shows that it is stated therein that the proprietor of M/s. Radhey Transport Corporation (Petitioner No. 1) made a statement before the Inquiry Committee. The Petitioner has stated specifically in para 11 of the writ petition that this recital in the impugned order is false, and it is specifically stated that Petitioner No. 2 was never examined or interrogated by the committee or any other authority. It is alleged in para 11 of the petition that no notice or opportunity was even given to the Petitioners to show cause or to appear before any committee or authority. In para 12 it is stated that the impugned order is based on some report by a committee which is said to have examined the Petitioner No. 2, while the true fact is that the Petitioner No. 2 was never examined or interrogated by the Committee or any other authority.
Thus, there is a clear averment in this petition that the recital in the impugned order that the Petitioner No. 2 appeared before the committee is false.
A counter-affidavit has been filed and we have perused the same.
The Respondents have argued that the Petitioners have an alternative remedy under Sections 70 and 128 of the U.P. Co-operative Societies Act as also under Clause 13 of the agreement (vide Annexure-C.A. 1 to the counter-affidavit). It is alleged in paragraph 8 that the Cattle Feed which was transported through the Petitioner could not reach the destination, and this happened several times and on several occasions. The Petitioner did not provide the vehicles for transportation. Various other allegations against the Petitioner have been mentioned in paragraph 8 of the counter-affidavit.
In paragraph 15 of the counter-affidavit, it is stated that the Petitioner appeared before the committee but refused to make any statement in the matter. In paragraph 16, it is stated that the Petitioner was informed for appearing before the three-member committee, and the Petitioner participated in the inquiry. It is alleged that on 11.2.2003, the members of the committee interrogated and wanted to take statement of the Petitioner but the Petitioner refused to make any statement.
It is settled law that before blacklisting a person opportunity of hearing has to be given vide Raghunath Thakur Vs. State of Bihar and Others, ; Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and Another, and Joseph Vilangandan Vs. The Executive Engineer, (Pwd), Ernakulam and Others, etc. We have, therefore, to decide whether in fact, opportunity of hearing was given to the Petitioner.
No doubt, there is a factual dispute in this case as to whether opportunity of hearing was given to the Petitioner or not, but there is no absolute bar to going into a disputed questions of fact in writ jurisdiction. No doubt, since writ jurisdiction is discretionary jurisdiction, the High Court can refuse to exercise its discretion under Article 226 on the ground that disputed questions of fact are involved, but this does not oust the jurisdiction of the Court. The High Court can go into factual controversies also in writ jurisdiction.
In Smt. Gunwant Kaur and Others Vs. Municipal Committee, Bhatinda and Others, , the Supreme Court observed:
"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the Petitioner''s right to relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law."
Similarly, in Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, , the Supreme Court observed:
"The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the Petitioner''s right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law."
We asked learned Counsel for the Respondents whether there is anything on record to show that a notice was issued to the Petitioner asking him to appear before the three-member committee, but learned Counsel for the Respondents could not point to any material on record to show that a notice was ever issued by the committee to the Petitioner. When the Petitioner had made a specific averments in paragraphs 11, 12 and 17 to the writ petition that he was not given an opportunity of hearing by the committee, it was incumbent on the Respondents to state specifically in the counter-affidavit the details of any notice allegedly issued in this connection to the Petitioner, and copy of the notice issued to the Petitioner by the committee should have been annexed to the counter-affidavit, but that has not been done. All that has been said in paragraph 21 of the counter-affidavit is that the Petitioner was informed by telephone to come and appear before the committee on 11.2.2002.
It is difficult for us to believe this averment. It is common knowledge that whenever an inquiry is held, a written notice is issued to appear before the inquiry officer/ committee. It is for the first time that we have come across a case where it is alleged that notice was issued not in writing but by telephone. We find it impossible to believe this averment. If such averment is believed then it can always be alleged that a notice was given orally.
Moreover, when a show cause notice is issued, it must contain specific charges to which the accused has to reply. It is settled law that these charges must be specific and not vague. Obviously such, charges must be contained in a written show cause notice. The averment that notice was given by telephone is strange and not believable. Moreover, it is not mentioned in paragraph 21 of the counter-affidavit, even assuming that notice was given by telephone, whether any specific charges were communicated to the Petitioner or not. Merely asking the Petitioner to appear before the committee without specifying the exact charges against him is clearly illegal. We, therefore, are of the opinion that in fact, no notice was issued by the committee to the Petitioner and the impugned order of blacklisting was passed behind the Petitioner''s back.
For the reasons given above, the petition is allowed and the impugned order is quashed.