Prabhat Kumar Dutta vs State Of West Bengal & Ors.

The writ petitioner is an M.R. Dealer under the Government of West Bengal at Jhalda Ananda Bazar, P.O. Jhalda, District â€" Purulia. His licence

was last renewed on 24th July, 2017. The writ petitioner prior thereto on 3rd February, 2015 was issued a show-cause notice for the acts and

omissions enumerated hereunder: -

“Whereas during the said inspection it would found that â€

You did not display/maintain Notice Board showing date, opening balance of available commodities and scale of distribution of commodities.

You did not issue cash memo for every transaction of PDS commodities with the ration card holders. It was found that the last cash memo issued

for APL category was 79 dated: 12.01.2015, for BPL category 09 dated: 18.01.2015 and AAY category 737 dated: 18.01.2015.

You did not arrange for convenient standing of the rationees under a suitable shade.

You did not maintain ration card register for APL category properly. The actual population maintained in the registered did not tally with the

pollution displayed on notice board. As per ration card register the population is: Adult-2181 and Mimor-1368, Total = 3549 whereas the population

displayed on notice board is Adult-3011 and Mimor-58, Total = 3069.

You did not maintain books of account of your shop properly.

From the allotment, receipt and sale made in the week 12.01.2015 to 18.01.2015 as was found in the stock and sale registers the following

discrepancies were detected as there was no stock of commodities found in the shop godown during inspection.â€​

After the due process of law, the writ petitioner was fined a sum of Rs. 15,000/-, which the writ petitioner duly paid. Thereafter, on 6th July, 2017, the

writ petitioner was issued another show-cause notice. This time on the basis of an order passed by the Director, DDP&S. The said Director had

passed the order pursuant to an inquiry against one of its own officials. No formal inquiry, , was however conducted at the shop of the writ petitioner.

The charges under the show-cause in the year 2017 are as follows: -

“From the confidential report of D.C.F.S. Purulia it surfaced that the concerned FPS dealer had been siphoning off highly subsidized food grains

of at least [3040(allotted) â€" 1907(verified during eight weeks after suspension of the dealer)] = 1133 Adult Units meant for APL category

beneficiaries for several months submitting zero closing balance at the time of placing indents to the area inspector of Jhalda Municipality before

suspension on 02/02/2015.

From that report it also surfaced that the dealer had been siphoning off highly subsidized food grains of at least [884 (allotted) â€" 534 (verified

during eight weeks after suspension of the dealer)] = 350 Adult Units meant for BPL category beneficiaries for several months submitting zero closing

balance at the time of placing indents to the area inspector of Jhalda Municipality before suspension on 02.02.2015.

Alleged closeness of the dealer with the then area inspector of Jhalda Municipality for illegal gain and secured undue access to official documents

at the Inspectors’ office.

The dealer did not care to authenticate his ration card register by the area inspector for the purpose of diversion of PDS commodities meant for

poorest section of the society fraudulently for his own financial gain A N D Whereas it appears to the undersigned that the FPS dealer has

contravened the para 16, 19(3), 19(12) of WBPDS (M & C) Order 2013 and licensing conditions 3, 8 and 10 of the license issued to him under clause

21(I) of WBPDS (M & C) order 2013.

A N D

Whereas, after consideration of above contraventions, the undersigned, in exercise of the power conferred upon him by 24(I) of WBPDS (M & C)

1013, directs the FPS dealer to show cause in written reply within one week from the date of receipt of this notice. The dealer is also directed to note

as well that in the event of failure of showing cause within stipulated period, the decision will be taken ex-parte.â€​

The writ petitioner says that during pendency of the writ application an order of termination of his M.R. Dealership has been issued. The same has

been brought on record by way of a supplementary affidavit. The principal ground urged in the writ application is that the show-cause notice was on

the self-same cause of action and/or facts as that of the showcause notice issued in the year 2015. I find that the two show-cause notices pertain to

completely different charges. The 2nd notice being for graver charges.

The second ground urged by the writ petitioner is that in the show-cause notice dated 6th July 2017, the proposed penalty has not been mentioned. He

says that he has been prejudiced by reason of such absence as he could not exactly submit his defence to meet an eventuality of imposition of the

major penalty of termination of his dealership. Non-mention of a proposed penalty, therefore, according to the petitioner, has vitiated the proceedings.

The writ petitioner relies on a decision of the Supreme Court in Gorkha Security Services Vs. Government (NCT of Delhi) and others, reported in

(2014) 9 Supreme Court Cases 105. Facts of the said decision were, inter alia, that a partnership firm was awarded a contract after a Notice inviting

tenders for providing security services at a hospital in New Delhi. The contract period was one year. Violation of statutory provisions, particularly the

Contract Labour Laws were found against the said contractor. A showcause notice was issued and a final order of blacklisting was passed.

The Hon’ble Supreme Court held that the show-cause notice, was bad in law as it did not mention the proposed penalty of ‘Blacklisting’. In

the contract in question entered into with the appellant in the said case, the penalty of blacklisting was not stipulated. The same was thus outside the

contractual penalties that the party to the contract would have notice of. The facts of the instant case are, however, completely different. A

contractual relationship is different from a statutory relationship. The writ petitioner relies upon another unreported decision of this Court (Ram Sankar

Sahoo vs. The State of West Bengal & Ors.) dated 15th May, 2018 passed by a co-ordinate Bench of this Court in WP 15652 (W) of 2016. I find that

the said decision has been rendered in different facts.

Paragraph 24 the West Bengal Public Distribution System (Maintenance & Control) Order, 2013, sets out the categories of penalty which may include

fine as well as termination of licence. The same is a public document. The order of 2013 has been issued under power conferred on the State

Government under Section 3 of the Essential Commodities Act, 1955. The power to impose such penalties is also stipulated under a Government of

India Order issued by Ministry of Consumer Affairs, Food and Public Distribution (Department of Food & Public Distribution), being Order No.

G.S.R.630 (E) dated 31st August, 2001. The petitioner must therefore be deemed to have knowledge of such likely penalties.

 In such circumstances, the said Gorkha Security Services decision (supra) can have no application to the facts of the present case. Mr. Sengupta,

learned counsel appearing for the State authorities makes a two-fold argument. First of which is that the Control Order of 2013 is a complete code and

does contemplate mentioning of a proposed penalty in a show-cause notice to commence proceedings thereunder. I find force in such argument.

There is no need for the authority to mention any proposed penalty as already stated likely penalties are enumerated under the aforesaid control order.

The writ petitioner therefore could not have been prejudiced.

Mr. Sengupta also argues that the writ petitioner has a remedy of appeal under the provisions of the aforesaid Control Order of 2013. The writ petition

may be barred even otherwise, for availability of efficacious statutory appeal. From the averments in the writ petition and the submissions made by the

learned counsel appearing for the writ petitioner, I find that there is no violation of the principles of natural justice. The order impugned is not perverse

and hence sustained. In the circumstances, the writ petition must fail. W.P. 22965 (W) of 2017 is hereby dismissed. There shall be no order as to

costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.