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Judgment
Rajnesh Oswal, J
With the consent of the learned counsels appearing for the parties, both these writ petitions were finally considered. As in both the petitions, same order is impugned and common issues are involved therefore, both these petitions are being disposed of by common judgment.
The respondents issued e-tender/NIT bearing No. Comml./2(1)/Wheat/OMSS(D)/J&K/15-16 dated 28.03.2016 inviting bids from the empanelled traders/bulk consumers for sale of Wheat under OMSS(D) and the petitioner Nos. 3 and 4 participated in the same and they were declared successful, after the respondents opened the aforesaid tender on 31.03.2016. The petitioner No. 3 was allotted a quantity of 3000 metric tonnes of wheat whereas petitioner No. 4 was allotted a quantity of 3500 metric tonnes of wheat. It is stated that after getting the tender details, the petitioner Nos. 3 and 4 approached the respondents and respondent No. 2 issued release order dated 07.04.2016 to petitioner No. 3 for „FCI Wheat Crop year URS 2015-2016 from FSD New Godown, Jammu‟ for 3000 metric tonnes. Similarly, the respondent No. 2 issued release order dated 07.04.2016 to petitioner No. 4 for „FCI Wheat Crop year-URS 2015-2016 from FSD New Godown, Jammu‟ for 3500 metric tonnes. The respondents could not complete the delivery of the adequate wheat to the petitioners 3 and 4 as per quantity allotted to them, as such, the time period for delivery of the remaining quantity of wheat from the godowns of the respondents was extended. After the last extension granted by the respondents, the petitioner Nos. 3 and 4 completed all the terms and conditions of the tender allotted to them and the petitioner Nos. 3 and 4 also paid the full amount to the respondents for lifting of the wheat URS for the year 2015-2016. It is further stated that the petitioners have been given the impugned order dated 07.09.2021 by one of the employees of the respondents. A perusal of the order reveals that it tries to impose ban upon the petitioners 2 to 5 with respect to some abnormalities against e-auction dated 31.03.2016 under OMSS(D) whereby as alleged in the order FAQ(Fair Average Quality) wheat was lifted from the designated depots instead of URS(Under Relaxed Specifications)wheat for crop year 2015-2016 resulting into the loss to the respondent-Corporation.
The petitioners have filed the present writ petition for quashing order dated 07.09.2021 passed by the respondents on the ground that the same has been passed without affording opportunity of being heard to the petitioners and also that the same has been passed without considering the fact that the petitioners 2 and 5 had never applied for the tender as mentioned in the order impugned and illegal recovery has been initiated against the petitioners.
Response stands filed by the respondents in which it has been stated that the recovery has been initiated after it was pointed out by the CAG Audit that 6632 metric tonnes of wheat was lifted from FAQ (Fair Average Quality) stock instead of URS (Under Relaxed Specifications) wheat, which was the tendered item and it was also for this item, the petitioner Nos. 2 to 5 were declared as winners in respect of e-auction winner list dated 17.03.2016 and e-auction winner list dated 31.03.2016. The audit worked out the differential amount of the rates of the crop year 2016-2017 (FAQ) and 2015-2016(URS) to the tune of Rs. 86.35 per quintal. Having regard to the FAQ wheat stocks of crop year 2016-2017 lifted by the petitioners 2-5 from FSD New Godown, Jammu, a notice dated 29.03.2019 was served upon the petitioners Nos. 2 to 5 with an advice to deposit the amount recoverable. The petitioners did not choose to comply with the request made and the matter was taken up with other authorities of the Food Corporation of India in terms of the impugned communication being the differential costs at the rate of 86.35 per quintal for the FAQ quality lifted by them. The petitioner Nos. 2-5 were again advised to deposit the amount recoverable vide notice dated 06.06.2019 but the petitioner Nos. 2 to 5 did not choose to deposit the amount determined to be recovered under and in terms of impugned communication. It is further stated that the petitioners 2 to 5 have not disclosed as to what prejudice has been caused on account of the petitioners 2 to 5 not being heard in the matter. The petitioners 2 to 5 have not disputed the fact that they have lifted FAQ wheat instead of URS wheat, which was the tendered item and it was for this commodity the petitioners 2 to 5 were declared as winners. It is further stated that the respondents had floated e-tenders dated 17.03.2016 and 31.03.2016 for sale of URS wheat under OMSS (D) scheme lying at various depots under Food Corporation of India Regional Office, Jammu. The petitioners 2 and 5 participated in the OMMS (D) scheme NIT dated 17.03.2016 and had lifted the FAQ wheat under the extension period. The petitioners 2 and 5 instead of informing this Court about they being winners with respect to the e-auction dated 17.03.2016, have deliberately suppressed this fact and have projected their innocence with regard to lifting of FAQ wheat and thereto liable for recovery of amount determined against them as per the notice issued. Admittedly, the petitioners 3 and 4 have participated in OMSS (D) scheme NIT dated 31.03.2016. The petitioners 2 to 5 were declared as winners and the release orders issued in favour of the petitioners 2 to 5 would also indicate that the petitioners 2 to 5 were allotted for URS wheat 2015-2016. The petitioners 2 to 5 have deposited the full payment for URS wheat of 2015-2016. The petitioners 2 to 5, however, lifted FAQ wheat, the price of which is on higher side than that of URS wheat.
The petitioners have filed the supplementary affidavit in which it is stated that the recovery proceedings have been initiated by the impugned communication without any prior notice as no notice was served upon the petitioners before passing the communication impugned. It is also stated that the impugned recovery order and proceedings have been initiated after the expiry period of limitation period as prescribed under law. The petitioners have denied CAG report for want of knowledge. It is further stated that only after getting the release order from the respondents for getting the wheat as per tender and e-auction dated 31.07.2016, the specific wheat i.e. URS quality was lifted by petitioner Nos. 3 and 4 from the godown of the respondents against proper receipt which was issued by the respondents itself in the year, 2016 which clearly mentions the number of bags/wheat etc. lifted by the petitioners 3 and 4 and it is denied that the petitioner Nos. 3 and 4 lifted wheat of FAQ quality instead of URS as alleged in the impugned communication.
Mr. Paras Gupta, learned counsel for the petitioners has vehemently argued that the petitioners 2 and 5 never participated in the tender for which the recoveries have been ordered against them and further have not been afforded any opportunity of being heard before issuance of the communication impugned. Mr. Gupta has relied upon the judgment in Uttar Pradesh Power Transmission Corporation Ltd and anr v CG Power and Industrial Solutions Limited and anr, 2021 AIR (SC) 2411.
Per contra, Mr. Jahangir Iqbal Ganai, learned senior counsel appearing for the respondents has submitted that the notices were issued to the petitioners for depositing the differential amount as they were supposed to lift URS wheat but they lifted FAQ wheat and further that it has not been demonstrated by the petitioners that any prejudice has been caused to them even if it is assumed to be true that no notice was issued to the petitioners. He further submitted that even if it is assumed for the sake of the arguments, that the petitioners were not at all at fault even then once the petitioners have been wrongly benefitted, they must return the same. He also submitted that the employees of the respondents who were found to be involved for the lapse have been punished after initiation of departmental proceedings.
Heard and perused the record.
The claim of the petitioners is that the petitioners 2 and 5 have never participated in the tender opened on 31.03.2016 and further that the impugned communication has been issued without affording any opportunity of being heard to the petitioners. So far as perusal of the reply filed by the respondents, it is evident that there were two e-tenders (NITs) and as such, there were two e-auction winners lists i.e. dated 17.03.2016 and 31.03.2016 and petitioners 2 and 5 were the successful candidates in e-auction 17.03.2016 whereas petitioner Nos. 3 and 4 were successful candidates in e-auction winner list dated 31.03.2016.
The petitioners 2 and 5 are in fact trying to get the advantage of the wrong mentioning of e-auction date in the communication impugned and rather in reply, the petitioners 2 and 5 have not denied the fact that they were not successful in e-auction list dated 17.03.2016. The respondents have contended that they have issued prior notice to the petitioners before passing the impugned order dated 07.09.2021. From perusal of the communications dated 29.03.2019 and 06.06.2019, it is revealed that the petitioners 2 to 5 have been asked to deposit the amounts for differential costs at the rate of Rs. 86.35 per quintal for the whole wheat lifted by them, as the petitioners 2 to 5 had lifted FAQ wheat whereas they were required to lift the URS wheat. The following amounts are sought to be recovered by the impugned communication:
Petitioner No.2 - Rs. 12,80,823/
Petitioner No. 3 - Rs. 14,58,040/
Petitioner No. 4- Rs. 5,20,888/
Petitioner No. 5- Rs. 9,12,738/
In the writ petition there is no whisper that the petitioner Nos. 3 and 4 did not lift FAQ wheat though by way of supplementary affidavit, they have specifically denied that they lifted the FAQ quality wheat instead of URS wheat. From the record, it is evident that no opportunity of being heard has been afforded to the petitioners and the notices as relied upon by the respondents dated 29.03.2019 and 06.06.2019 cannot be termed as a show cause notice but rather in these notices, the petitioners were advised to deposit the amount. In fact the petitioners have not been allowed by the respondents to put forth their cause before issuing the communication impugned. From the record, it is also evident that the disciplinary proceedings were initiated and the punitive action has been initiated against the employees of the Corporation who were found to be negligent in performance of their duties.
There is a force in the contention of Mr. Ganai, that even if a person has wrongly obtained the benefit, he must repay/ return it. This Court does not agree with the contention of the petitioners 2 and 5 that recoveries have been issued when they had not participated in e-auction dated 31.03.2016 particularly in view of the fact that there is no denial by petitioner Nos. 2 and 5 that they did not participate in the e-auction dated 17.03.2016. The petitioners 2 to 5 cannot be permitted to get the benefit of the wrong date of e-auction mentioned in the impugned communication as these are the typographical errors and particularly when the petitioners 2 and 5 have participated in e-tender dated 17.03.2016 and figured in the winner list. Needless to say that the huge public money is involved but equally true is that no opportunity of being heard has been afforded to the petitioners. In Canara Bank v. V.K. Awasthy, (2005) 6 SCC 321, the Apex Court has held as under:
“9. The expressions “natural justice” and “legal justice” do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence.
The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wands worth Board of Works [(1863) 143 ER 414 : 14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the principle was thus stated:
“Even God himself did not pass sentence upon Adam before he was called upon to make his defence. „Adam‟ (says God), „where art thou?
Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?‟ ”
Since then the principle has been chiseled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”
The judgment relied upon by the learned counsel for the petitioners is not applicable in the present facts and circumstances of the case, as in the said case it was held that solely on the basis of the CAG report, the UPPTCL cannot recover and extract building cess as UPPTCL had no authority to realize labour under the Cess Act. So far as the instant case is concerned, it is the differential amount that is being sought to be recovered by the respondents as such, this judgment is not applicable.
In view of all what has been discussed above, this Court deems it proper to dispose of the writ petition with the following directions:
a. The petitioner Nos. 2-5 shall make the representations to the respondents with regard to their claims/defence vis-à-vis recoveries sought to be effected from them, within the period of 30 days from the date of this order and on receipt thereof, the respondents shall pass the appropriate order within further period of 30 days and further the petitioner Nos. 2 to 5 shall be at liberty to approach the respondents for personal hearing as well within above mentioned period and if they opt, the same shall be granted to the petitioner Nos. 2 to 5.
b. The parties shall maintain status quo with regard to the impugned communication till the representations of the petitioner Nos. 2 to 5 are considered and decided by the respondents and impugned communication shall remain subject to the outcome of the decision upon the representations of the petitioner Nos. 2 to 5 by the respondents.
c. In the event no representation is made by the petitioner Nos. 2 to 5 within above mentioned period, the respondents shall be at liberty to proceed ahead in terms of impugned communication dated 06.09.2021.
WP(C) No. 2038/2021
In this writ petition, amount sought to be recovered from the petitioner is Rs. 7,48,337.00. Disposed of in terms of order passed and directions issued in connected writ petition bearing WP(C) No. 1912/2021.