Maimur Hossain Mondal vs Union of India and Others

Subrata Talukdar, J.—1. The subject matter of challenge in this writ petition is the selection of the private respondent No. 8 as a LPG dealer under the Rajiv Gandhi Gramin LPG Vitrak Scheme (for short RGGLV) at Swaruppur under Hariharpara Block in the District of Murshidabad (for short the said dealership) under the Hindustan Petroleum Corporation Ltd. (for short HPCL).

Sri Asish Sanyal, Ld. Senior Counsel appearing on behalf of the petitioner submits that the said dealership was advertised on 28th February, 2011 and the petitioner responded to the advertisement. The petitioner was selected to participate in the lucky draw for the RGGLV along with other selected applicants on the 14th of December, 2011. The private respondent No. 8 became the winner in the said draw executing an agreement for allotment of the dealership between the private respondent No. 8 and the oil company, being HPCL on 30th March, 2013.

Sri Sanyal submits that after the selection the petitioner came to know from reliable sources that the documents submitted by the private respondent No. 8 in proof of her entitlement are not genuine. Therefore, the petitioner applied under the Right to Information Act (for short RTI) application on the same date, i.e. 19th March, 2015 before the Branch Manager, SBI, Daltonpur Branch (for short the said branch) seeking information on the point whether on 28th March, 2011 the bank issued any certificate of bank guarantee in favour of the private respondent No. 8.

Sri Sanyal points out that the application dated 19th March, 2015 (supra) was followed up by another application to the said branch on 24th March, 2015. Averring at paragraph 15 of the writ petition the petitioner states that the certificate issued from the said branch by the then Branch Manager contains a handwritten portion which reads as follows:--

"Bank also agrees to extend a loan of Rs. four lacs".

According to Sri Sanyal the additional handwritten portion in the certificate from the said Branch is a fraudulent exercise carried out by the private respondent No. 8 to enhance her selection as a LPG dealer. Sri Sanyal points out that under the selection guidelines the marks allotted for holding financial capability between rupees three lacs and four lacs is 10 marks. The private respondent No. 8 in view of the handwritten portion of the certificate fraudulently included which, according to Sri Sanyal, was neither certified by signature or seal of the bank enhanced her marks by 10 in the selection and thereby fell within the zone of selection.

Arguing that such fraudulent exercise could be brought to the notice of this Court only after its discovery, Sri Sanyal submits that delay, if any, in challenging the selection of the private respondent No. 8 must be leniently considered since fraud vitiates all action.

It is also pleaded by the writ petitioner at paragraph 14 of the writ petition that as on 20th March, 2011, i.e. during the pendency of the selection process the available credit balance in the savings bank account of the private respondent No. 8 was Rs. 2,39,889/-. Under the available credit balance the writ petitioner did not qualify to receive the allotted marks against financial capability under the guidelines. It was only on the basis of the allegedly fraudulent insertion by handwriting in the certificate of the bank that the writ petitioner succeeded to fall within the zone of consideration for the dealership.

During hearing of this matter this Court directed filing of affidavit by the respondents-SBI to explain the allegations levelled on behalf of the writ petitioner. One Sankar Kumar Paul, the current incumbent in the post of the Branch Manager of the said branch, by an affidavit affirmed on 12th June, 2015 has, inter alia, pleaded at paragraph 6 thereof as follows:--

"6. In compliance with the aforesaid direction, I, being the Branch Manager, State Bank of India, Daltonpur Branch, P.O.- Hariharpur, District Murshidabad wish to file this Affidavit on the basis of record available with Bank:

a) At the material point of time Supriya Ghosh daughter of Jadav Chadra Ghosh residing at village and Post office Swaruppur, P.S. Hariharpara, District- Murshidabad, PIN- 742166 maintained one savings Bank Account being S.B. No. 31540348225 with the State Bank of India Daltonpur Branch. A copy of the statement of account for the relevant period is annexed and marked with letter R-2.

b) At the request of the said Supriya Shosh, Sri Dilip Das, the then Branch Manager of the State Bank of India, Daltonput Branch issued one certificate in favour of said Supriya Ghosh. While issuing said certificate the then Branch Manager did not add in handwriting the word "Bank also agree to extend a loan of Rs. Four Lacs". An office copy of the said Certificate is annexed and marked with letter R-3. I say that as the said statement was not added by the then Branch Manager, he did not certify the said addition by his signature and seal."

The copy of the certificate has been annexed to the said affidavit of the Branch Manager at page 11 thereof. The copy of the certificate kept in the original records of the bank as annexed to the affidavit of the said Branch Manager reads as follows:--

"TO WHOMSOEVER IT MAY CONCERN

Smt. Supriya Ghosh d/o Sri Jadab Chandra Ghosh, Vill & Po Swapuppur, PS Hahiharpara, Dist. Murshidabad, WB is a customer of this branch of our bank for last 2 (two) Years and she is enjoying the following facilities from our bank.

a) SB Account NO 31540348225

During the above period, the dealings of Smt. Supriya Ghosh with the bank and conduct have been satisfactory. In case, RGGLV is allotted to her, we will be willing to extend a loon as per requirements subject to term & conditions stipulated by bank.

Signature: Name & Designation: Sri Dilip Das, Branch Manager. Office Seal Date: 28/03/11"

However, from the affidavit-in-reply filed on behalf of the petitioner to the report filed on behalf of the Branch Manager of the said branch as referred to above the allegedly fraudulently inserted portion of the certificate reads as follows:--

"TO WHOMSOEVER IT MAY CONCERN

Smt. Supriya Ghosh d/o Sri Jadab Chandra Ghosh, Vill & Po Swapuppur, PS Hahiharpara, Dist. Murshidabad, WB is a customer of this branch of our bank for last 2 (two) Years and she is enjoying the following facilities from our bank.

b) SB Account NO 31540348225

During the above period, the dealings of Smt. Supriya Ghosh with the bank and conduct have been satisfactory. In case, RGGLV is allotted to her, we will be willing to extend a loon as per requirements subject to term & conditions stipulated by bank. Bank also agrees to extend a loan of Rs. Four lacs.

Signature: Name & Designation: Sri Dilip Das, Branch Manager. Office Seal Date: 28/03/11"

This Court thereafter was pleased to call upon the then Branch Manager of the said branch through Ld. Counsel for the respondent-SBI to explain the certificate issued by him on the 28th of March, 2011 in favour of the private respondent No. 8. By letter dated 29th August, 2015 the then Branch Manager, SBI, one Dilip Kumar Das explained that he has been advised medical rest. The said Dilip Kumar Das also confirmed that the original certificate as annexed to the report on affidavit filed by the bank was issued by him in favour of the private respondent No. 8 and certifies to the correctness of such certificate only.

The respondent No. 9-Bank is represented by Sri Subir Pal Choudhuri, Ld. Counsel.

The respondent Nos. 2 to 6-HPCL are represented by Sri Prasun Mukherjee, Ld. Counsel. It is the submission of Sri Mukherjee that the respondents -HPCL had selected the private respondent No. 8 upon due verification. However, in the event this Court is pleased to pass any order the respondents-HPCL shall abide by the same.

Sri Bikash Ranjan Bhattacharya, Ld. Senior Counsel appearing for the private respondent No. 8 urges the following points:--

"First, that the selection of the private respondent No. 8 took place after exhaustive verification made by HPCL. In this connection Sri Bhattacharya relies heavily upon the averments made by HPCL in its affidavit-in-opposition (AO). Sri Bhattacharya submits that marks were allotted by HPCL to the respective candidates according to their merit.

Second, Sri Bhattacharya points out that the writ petition is being moved by an unsuccessful candidate. It is trite law that a writ petition by an unsuccessful candidate cannot be entertained.

Therefore, Sri Bhattacharya argues that it is an admitted position that as on the date of making the application the private respondent No. 8 owned a balance of above Rs. 2 lacs with the bank. Therefore, even if the handwritten portion in the certificate is omitted under the guidelines the private respondent No. 8 is entitled to receive a total of 9 marks instead of 10 which makes the private respondent No. 8 still the first candidate in the panel.

Fourth, Sri Bhattacharya submits that the communication of the said Dilip Kumar Das, the then Branch Manager of the said Bank, dated 29th August, 2015 does not point to any material conclusion. The communication is ambiguous on this point whether the handwritten portion belongs to him.

Finally, Sri Bhattacharya submits that for so long during the subsistence of the dealership no financial instability has been found against the petitioner. Therefore, at this stage it is not trite law to dislodge a settled state of affairs causing huge inconvenience to the public at large."

Sri Prasun Mukherjee, Ld. Counsel for HPCL takes this Court to Appendix A of the RGGLV guidelines of December, 2014 and points out that the 10 marks were awarded to the private respondent No. 8 because of the handwritten portion in the certificate. Sri Mukherjee submits that HPCL is required to take steps under the guidelines if the certificate is found to be vitiated.

However, from the AO of HPCL, Sri Mukherjee reiterates the submission made by Sri Bhattacharya that the selection of the private respondent No. 8 was finalised only after an exhaustive verification.

Having heard the parties and considering the materials on record this Court is required to notice the AO filed by the respondents-HPCL to the writ petition. In the AO a letter dated 17th April, 2015 addressed by the private respondent No. 8 to the Senior Regional Manager, HPCL, Kolkata LPG Regional Office appears, the relevant portion of which reads as follows:--

"AND WHEREAS that Mimur Hossain question about Bank Guarantee but it is curious enough that how he obtained or got knowledge about the confidential papers submitted by me to Your Office and the letter was not contents any reference of Right to Information Act, 2005"

Next, this Court is required to notice the AO filed on behalf of the private respondent No. 8 to the writ petition. From the said AO it transpires that the private respondent No. 8 has attempted to deny the material portions of the allegations levelled by the writ petitioner as follows:--

"10. With reference to the statement made in paragraphs 12 of the said application I deny and dispute the allegation that I was not the owner of the said land at the time of execution of the agreement and sold out the said land voluntarily.

With reference to the statement made in paragraph 14 of the said application I deny and dispute the allegation that I did not have the sufficient credit balance in the SBI savings Bank A/c for getting the certificate of Bank guarantee for the required amount.

With reference to the statement made in paragraph 15 of the said application I deny and dispute the allegation that I used the bad means in the Bank Guarantee Certificate."

From a bare perusal of the letter dated 17th April, 2015 (supra) and the contents of the AO of the private respondent No. 8 (supra), this Court notices that the material allegations levelled by the writ petitioner are denied in an evasive manner.

This Court further notices that the Bank in its report on affidavit has produced before this Court the contents of the original certificate. The contents of the original certificate do not contain the handwritten portion. However, in his affidavit-in-reply the writ petitioner has produced the certificate with the handwritten portion. The circumstances in which such handwritten portion has found its way into the certificate have not been specifically dealt with by the private respondent No. 8.

The then Branch Manager, Dilip Kumar Das, who issued the certificate, has also adopted a vague tone taking refuge in both his medical condition and in the Report-on-Affidavit filed by the Bank.

The fact remains that there is no specific denial also by the respondents-HPCL that the handwritten portion of the certificate was not considered by them at the time of allotting marks. On the contrary, Sri Mukherjee, Ld. Counsel for HPCL has argued before this Court that on the basis of the handwritten portion a total of 10 marks were allotted in favour of the private respondent No. 8.

Therefore, this Court is persuaded to notice the difference in the certificates with the original records of the said Branch of the Bank and in the records of the selection to the dealership by HPCL. Such differing certificates caused by the alleged insertion of the handwritten portion which has been denied by the original maker, the said Dilip Kumar Das, raises the presumption of a fraudulent action.

This Court is consequently persuaded to notice Sri Sanyal''s submission that fraud discovered at any moment is liable to vitiate the entire selection. Therefore, this Court finds that the writ petitioner upon discovery of the fraud and after making unsuccessful attempts to obtain RTI replies, has the right to maintain the present cause of action once such fraud is detected and brought to the notice of this Court.

Since the portion incorporated by hand in the certificate is not specifically denied by the private respondent No. 8 except the general denial that she honestly participated in the selection process and the allegation of the writ petitioner are concocted, this Court is of the strong view that the presence of the certificate which was not the same as the original certificate claimed to have been issued by the bank in view of the handwritten portion deserves to be investigated by a competent agency.

Accordingly, this Court directs that the matter be handed over to the Central Investigation Department (CID), Government of West Bengal for investigation.

Registry is directed to communicate this order to the CID.

Upon receipt of this order CID shall investigate the matter within a period of six months by drawing up the necessary formalities and taking consequential steps.

The CID shall communicate the result of its investigation to HPCL and the Bank who shall then take appropriate steps.

8395(W) of 2015 stands accordingly disposed of.

There will be, however, no order as to costs.

Urgent certified photocopies of this judgement, if applied for, be given to the learned advocates for the parties upon compliance of all formalities.