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IN THE HIGH COURT AT CALCUTTA
Subrata Talukdar, J.
Shanti Devi Agarwal & Anr. - Petitioners
Vs.
The State of West Bengal & Ors. – Respondents
W.P. 10312(W) of 2015
Decided On : 19-11-2015
FAIR PRICE SHOP DEALERSHIP - APPOINTMENT - REJECTION - CRIMINAL CASE PENDING - APPLICANT'S SUITABILITY - RELEVANT CONSIDERATIONS - WEST BENGAL PUBLIC DISTRIBUTION (MAINTENANCE & CONTROL) CONTROL ORDER, 2003 - WEST BENGAL PUBLIC DISTRIBUTION SYSTEM (MAINTENANCE AND SUPPLY) CONTROL ORDER, 2013 - INDIAN PENAL CODE, 1860 - SECTIONS 420, 468, 411 - MEMORANDUM DATED 10TH APRIL, 1991 - MEMORANDUM DATED 3RD JULY, 1985 - MEMORANDUM DATED 29TH JANUARY, 1975 - NOTIFICATION DATED 3RD JUNE, 2011 - DELHI ADMINISTRATION THROUGH ITS CHIEF SECRETARY & ORS. VS. SUSHIL KUMAR - STATE OF WEST BENGAL & ORS. VS. SK. NAZRUL ISLAM - PUBLIC INTEREST LITIGATION BEING WP 22311(W) OF 2011 - RELIANCE AIRPORT DEVELOPERS (P) LTD. VS. AIRPORTS AUTHORITY OF INDIA - CONFUCIUS'S WISDOM - FAIR PRICE SHOP DEALERSHIP - REJECTION - CRIMINAL CASE PENDING - APPLICANT'S SUITABILITY - RELEVANT CONSIDERATIONS.
Fact of the Case:
Petitioner no. 2 was denied appointment as a Fair Price Shop Dealer (FPS) by the Director of Rationing (DOR) on the ground that he was not a person of unimpeachable character and integrity due to a pending criminal case against him under Sections 420, 468, and 411 of the Indian Penal Code (IPC). The petitioner challenged this decision, arguing that the DOR erred in revisiting his claim under the West Bengal Public Distribution System (Maintenance and Supply) Control Order, 2013, when a previous order of the court had directed consideration under the West Bengal Public Distribution (Maintenance & Control) Control Order, 2003. The petitioner also relied on a Memo dated 10th April, 1991, issued by the Deputy Director (S), Directorate of District Distribution, Procurement and Supply, which stated that the mere charge of involvement or the pendency of a criminal case against an applicant may not be a ground for refusing to grant/renew a license.
Finding of the Court:
The court held that the DOR was not justified in revisiting the petitioner's application under the 2013 Control Order, given the clear direction of the previous order to consider the claim under the 2003 Control Order. However, the court also held that the DOR was not denuded of his jurisdiction to enquire into the petitioner's antecedents, despite the pendency of the criminal case. The court relied on several precedents, including Delhi Administration through its Chief Secretary & Ors. vs. Sushil Kumar and State of West Bengal & Ors. vs. Sk. Nazrul Islam, which emphasized the importance of verifying the character and antecedents of candidates for appointment to sensitive positions.
Issues: 1. Whether the DOR was justified in revisiting the petitioner's application under the 2013 Control Order, given the previous order directing consideration under the 2003 Control Order? 2. Whether the DOR had jurisdiction to enquire into the petitioner's antecedents, despite the pendency of the criminal case?
Ratio Decidendi: 1. The court held that the DOR was not justified in revisiting the petitioner's application under the 2013 Control Order, given the clear direction of the previous order to consider the claim under the 2003 Control Order. This was because the 2013 Control Order was specifically excluded by the previous order. 2. The court held that the DOR had jurisdiction to enquire into the petitioner's antecedents, despite the pendency of the criminal case. The court reasoned that the DOR, as the appointing authority, was not denuded of his jurisdiction to ensure that the petitioner was suitable for the position. However, the court also emphasized that the DOR was not entitled to prejudge the outcome of the pending criminal proceedings.
Final Decision: The court dismissed the writ petition, holding that the DOR correctly exercised jurisdiction in refusing the appointment to the petitioner no.2.
Subrata Talukdar, J.
The short point that this Court is required to answer in this writ petition is whether the order impugned dated 28th April, 2015 passed by the Director of Rationing, Government of West Bengal (for short DOR) is legally sustainable or not. By the order impugned the DOR refused to appoint the petitioner no.2 as a Fair Price Shop Dealer (for short FPS) on the ground that the petitioner was not a person of unimpeachable character and integrity.
2. The DOR took notice of the fact that a criminal case being CGR No. 2506 of 2002 is pending against the petitioner no.2 under Sections 420, 468 and 411 of the Indian Penal Code (for short IPC). Further noticing that each of the three Sections of the IPC as noted above relate to serious offences of cheating, forgery and dishonestly receiving stolen property which are all cognizable and non-bailable, the DOR came to the conclusion that it is necessary for the appointing authority to consider whether the appointee has acceptable moral antecedents.
3. Sri Debabrata Saha Roy, Ld. Counsel for the writ petitioners strongly submits that by order dated 12th September, 2014 in WP 19578(W) of 2011 a Hon’ble Single Bench of this Court was pleased to direct the competent respondent authority to consider the claim of the present petitioners for appointment on compassionate grounds to the FPS dealership of the original dealer, since deceased, under the provisions of the West Bengal Public Distribution (Maintenance & Control) Control Order, 2003 (for short the 2003 Control Order).. Therefore, Sri Saha Roy submits that the DOR patently fell into error by revisiting the claim of the petitioner for appointment on compassionate grounds on the platform of the West Bengal Public Distribution System (Maintenance and Supply) Control Order, 2013 (for short the 2013 Control Order) when, the application of such order stood specifically excluded by the order of this Court dated 12th September, 2014 (supra).
4. Also arguing that while applying the 2003 Control Order in respect of the appointment of the petitioner no.2, Sri Saha Roy points out that the DOR was required to take notice of the Memo dated 10th April, 1991 issued by the Deputy Director (S), Directorate of District Distribution, Procurement and Supply (for short DDP & S). By the Memo of 10th April, 1991 it has been made clear that the mere charge of involvement of the applicant or the fact that a criminal case against the applicant is pending may not be a ground for refusing to grant/renew a license. A license may be refused to be granted/renewed if the applicant is found convicted of an offence relating to essential commodities or, if such appointment is likely to impede the supply and distribution of essential commodities by the appointee.
5. On the strength of the above noted Memo dated 10th April, 1991 Sri Saha Roy further submits that the petitioner is merely facing criminal proceedings in respect of CGR No. 2506 of 2002 (supra). Reading the Memo dated 10th April, 1991 (supra). In the context of the fundamental canon of criminal law that an accused must be presumed to be innocent until proved guilty, Sri Saha Roy argues that the DOR committed an error of law by refusing the grant of FPS licence to the petitioner no.2 on the surmise that the latter lacked good character and integrity.
6. Sri Saha Roy submits that the DOR travelled beyond jurisdiction by trying to anticipate the conclusion of the pending criminal proceedings against the petitioner no.2 and to pass a final opinion thereon. In support of his submissions Sri Saha Roy relies upon the decision in WP 26255(W) of 2013 dated 11th September, 2013 passed by a Hon’ble Single Bench as well as the order of a Hon’ble Division Bench of this Court dated 20th of February, 2015 in FMA 450 of 2015.
7. Per contra, Sri Susovan Sengupta, Ld. Senior Government Advocate submits that the DOR was within his powers to consider whether the petitioner no.2 was suitable in all respects to be a
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