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IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
Rajesh Dhanuka – Petitioner
Versus
State of West Bengal and Others – Respondents
W.P. Nos. 17936 & 18371 (W) of 2013
Decided On : 26-09-2013
For the Petitioner:Mr. Bikash Ranjan Bhattacharya, Mr. R.A. Agarwala, Ms. K. Gupta, Mr. Ramesh Dhara, Ms. Nibedita Pal, Advocates.
For the Private Respondent:Mr. Bikash Ranjan Bhattacharya, Mr. R.A. Agarwala, Ms. K. Gupta, Mr. Ramesh Dhara, Ms. Nibedita Pal, Advocates.
The decision of the Director to appoint a distributor under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 must be based on proper application of mind and must take into account all relevant factors, including the suitability of the proposed godown and the surrounding area.
Headnote:
FOOD DISTRIBUTION - ELIGIBILITY - APPLICANT'S GODOWN NOT IDEAL - NO CRITERIA FOR EVALUATION - NO OPPORTUNITY OF HEARING - ORDER QUASHED - FRESH CONSIDERATION DIRECTED.
Fact of the Case:
Petitioners challenged an order declaring them ineligible for appointment as distributors under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003, due to discrepancies in their proposed godowns. The discrepancies were identified by an enquiry officer, whose report was relied upon by the Director without granting the petitioners an opportunity to contest the findings.
Finding of the Court:
The court held that the Director's order was flawed for the following reasons: (i) the enquiry officer's opinion that the petitioners' godowns were not ideal was not based on any laid down criteria; (ii) the petitioners were not given an opportunity to challenge the enquiry officer's findings; (iii) the Director mechanically accepted the enquiry officer's report without applying his own mind; (iv) the Director did not consider whether distributors had been appointed at other places with similar features; and (v) the Commissioner, whose approval was required for the Director's order, did not apply his mind to the matter.
Issues: 1. Whether the enquiry officer's opinion that the petitioners' godowns were not ideal was based on any laid down criteria? 2. Whether the petitioners were given an opportunity to challenge the enquiry officer's findings? 3. Whether the Director mechanically accepted the enquiry officer's report without applying his own mind? 4. Whether the Director considered whether distributors had been appointed at other places with similar features? 5. Whether the Commissioner applied his mind to the matter before approving the Director's order?
Ratio Decidendi: The court held that the Director's order was not based on proper application of mind and was, therefore, quashed. The court directed the Director to grant the petitioners an opportunity of hearing and to reconsider the matter in accordance with the principles laid down in the judgment.
Final Decision: The court quashed the Director's order and directed him to grant the petitioners an opportunity of hearing and to reconsider the matter in accordance with the principles laid down in the judgment.
Dipankar Datta, J.
1. These two writ petitions are directed against an undated order of the Director, District Distribution, Procurement and Supply (hereafter the Director), which was conveyed, inter-alia, to the two petitioners vide memo dated May 3, 2013. While acting in compliance with an order dated May 16, 2012 passed by an Hon'ble Division Bench of this Court, the Director opined that neither of the two petitioners was capable of performing distribution of food-grains from their offered locations and that they are not eligible for appointment as distributor under the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 (hereafter the Order). It was, accordingly, directed that the candidature of all the applicants who had applied pursuant to the vacancy notice dated February 8, 2006 stands cancelled.
2. There have been several previous rounds of litigation before this Court in connection with the selection process that was initiated for appointment of a distributor at Assam More, Jalpaiguri pursuant to vacancy notice dated February 8, 2006. The order dated May 16, 2012 referred to in the impugned order was passed in connection with MAT 598 of 2012, being a writ appeal preferred by the petitioner in W.P. 17936 (W) of 2013 (hereafter Rajesh). In such appeal, the petitioner in W.P. 18371(W) of 2013 (hereafter Sunil) was the first respondent whereas the State and the officers of the Food and Supplies Department were the other respondents. The operative part of the order dated May 16, 2012 is quoted below:
"Therefore, after quashing the said report, it appears to us that fresh verification should be done in the matter in terms of the control order under Clause 23(iii) of the West Bengal Public Distribution System (Maintenance and Control) Order, 2003 and should start from the level from which the Division Bench upheld the decision of the Single Bench and quashed the 3rd enquiry report. Accordingly, we hold that the enquiry should be made from that stage and enquiry report should be placed before the authority to give effect to the said recommendation of panel which was placed before the authority.
Accordingly, in our opinion, the order so passed by the Hon'ble Single Judge cannot sustain in the eye of law and has to be set aside on the ground that enquiry should have been done by the authorities for such appointment from the stage where the Court set aside the 3rd enquiry report and thereby the said list cannot be said to be reached its finality in respect of choosing the person in question. Such facts, in our opinion, escaped from the mind of the Hon'ble Single Judge.
Hence, we allow this appeal and direct the said authority to complete the enquiry for a period of six months from the date of the communication of the order to give effect thereto in accordance with the provisions of law."
3. The Director by an order dated August 07, 2012 had appointed Jamini Kumar Baidya, Officer-on-Special Duty and ex-officio Joint Director, District Distribution, Procurement and Supply (hereafter the OSD) for an on spot enquiry on the status of the competing candidates for appointment as Distributor for the subject vacancy. It appears from the report dated November 30, 2012 of the OSD that an enquiry was conducted on November 21, 2012 and a proforma report of each candidate on the factual position of godown alongwith other allied matters was prepared whereupon signature of both Rajesh and Sunil were obtained as a mark of their knowledge of the contents of enquiry. It further appears that one of the three competing candidates, Jugal Kishore Shanghai (hereafter Jugal) was not present during the enquiry and on local enquiry it was revealed that the godown proposed by him presently was not under his possession. The enquiry report also contained "points of anomalies" insofar as Rajesh and Sunil are concerned. It would be proper to set out from the report of the OSD the points of anomalies found by him, reading as follow
