ORDER
1. The facts involved in this writ petition inter alia are that the writ petitioners by registered partnership deed dated August 8, 1984 formed a partnership firm under the name and style of “M/s. Suhas Chandra Dey and Kaberi Bose” in order to carry on business as M. R. Distributor having its office-cum-godown at Gourpara (Singher-bagan, P.S. and P.O. Chakdah, District Nadia).
2. An agreement was executed between the petitioners and the respondent No. 5 (S.C.F. and S Kalyani) on behalf of the Governor of the State of West Bengal in connection with the distribution of foodstuff in the District of West Bengal. The aforesaid agreement was executed on 31st July, 1985.
3. While functioning as M. R. Distributor, all on a sudden the petitioner was served with a communication being Memo No. 26/FS/Kly/92 dated 7th January, 1992 issued by the respondent No. 5 Sub-Divisional Controller, Food and Supplies, Kalyani, P.S. Kalyani, District Nadia, where-from it transpired that vide para 12 of the M.R. Agreement executed between the petitioners and the Government, supplies of foodstuffs stand suspended as also the said agreement stands terminated with effect from 6th January, 1992 for breach or contravention of the provisions of the agreement. Xerox copy of the said communication has been annexed to the writ petition.
4. It has been alleged against the petitioners that they allegedly lifted 83 bags of
N.B.S.F. (boiled rice) vide D.O. No. 731 dated 25th September, 1991 issued from the office of the District Controller, Food & Supplies, Nadia but delivered raw rice instead of boiled rice on 26th September, 1991 to a few M. R. dealers under their jurisdiction. The further allegation brought against the petitioners in the said communication that several alleged attempts made by the officials for checking the books of accounts were frustrated and/ or prevented due to the closure of the said shop on every occasions which is in contravention of para 10 of the articles of agreement executed between the petitioners and the Government.
5. It has been submitted on behalf of the petitioners that the allegations brought against the petitioners are absolutely baseless or in other words the allegations are devoid of any factual basis whatsoever. That from D.O. No. 731 dated 25th September, 1991 issued by the District Controller Food & Supplies, Nadia,” itself would go to show that 73 qtls. 55 kgs. 25.7 grams NBSF rice in 83 bags were delivered to the petitioners and there was a short delivery to the extent of 1 qtl. 44 kgs. 743 grams. Such being the position the question of bringing the allegation against the petitioners with regard to lifting of NBSF rice (boiled) and delivery of raw rice to M.R. dealers by the petitioners does not and cannot arise. Xerox copy of the said D.O. No. 731 dated 25th September, 1991 issued by the respondent No. 4 has been annexed to the writ petition.
6. It has further been contended on behalf of the petitioners that it would appear from the Log Book meant for receipt of respective deliveries so supplied by the concerned authority upon necessary indents of the petitioners that the said delivery was with regard to 83 bags of NBSF rice only and no boiled rice, as alleged was delivered under the said D.O. No. 731 dated 25th September, 1991 to the petitioners. That when the authorities themselves did not supply the petitioners “boiled rice”, as alleged, as per the said D.O. No. 731, it is not understood as to how the writ petitioners could be victimised for delivery of rice to the M.R. Dealers
instead of boiled rice. That having delivered NBSF rice to the petitioners the petitioners cannot be asked to deliver boiled rice to the M.R. dealers. Such being the position the allegation of receiving boiled rice and delivery of only raw rice to the M.R. Dealers by the petitioners has got no legs to stand upon. This would go to show that the concerned authority acted not on any basis but on some extraneous consideration having no reasonable nexus with the matters in issue and as such the said order is vitiated and cannot be sustained in the eye of law.
It has further been submitted that though the impugned order of suspension and termination was issued on 7th January, 1992 with retrospective effect from 6th January, 1992, the petitioners were favoured with another delivery order vide D.O. No. 1070 issued by the respondent No. 4 with regard to 171 bags of NBSF rice and in order to enable the petitioners to lift the said commodities the validity of the said delivery order was extended up to 9th January, 1992 by the concerned authority and the petitioners have lifted the said commodities on 9th January, 1992. Accordingly, the authorities have given a go-bye to the panel order passed by the respondent No. 4 and as such it can very well be presumed that the order of suspension and termination, as aforesaid, has not yet been given effect to. Xerox copy of the said D.O. No. 1070 dated 6th January, 1992 issued by the respondent No. 4 has been annexed to the writ petition.
It has also been denied that the petitioners did not deliberately allow the senior government officials to hold enquiry and to look into the Registers, Books of Accounts maintained by the petitioners.
7. It has also been submitted that on several dates after 25th September, 1991 the Area Inspector visited the shops in question and made inspections of the Stock Registers and other Registers and Books of Accounts and they after due inspection of the same were satisfied with” the performance of the petitioners and the said authorities also put their signatures in the respective registers. Such being the position the allegation of restraining
the concerned officials from having inspections of the shops in question is absolutely baseless, false and contrary to the record.
8. It has been alleged on behalf of the petitioner that the order of penalty itself is contradictory in nature because it has been alleged that on the basis of the enquiry the authority was satisfied that there was contravention of paragraph 3 of the agreement.
9. The allegation, however, against the petitioner is that the petitioner did not allow the authorities to hold enquiry inspection. In that event it has been submitted that the question of being satisfied on the basis of enquiry as alleged is totally inconsistent.
10. It is also the contention of the petitioner that the order is penal in nature and since the same has been issued against the petitioner without hearing the petitioner the same violates the principle of natural justice and cannot be sustained.
11. It has also been submitted that in terms of paragraph 12 of the said agreement either the District Magistrate or the Controller with the approval of the District Magistrate may suspend or terminate this agreement if in the opinion of the Controller, the Distributor has committed any breach of the terms and conditions of the agreement.
12. No records have been produced to show that the District Magistrate has accorded such approval or the Controller had formed his independent opinion in the matter.
13. It has also been submitted that the Controller has issued the order in a hot haste with retrospective effect which is unwarranted by the law of the land.
14. It has been submitted on behalf of the respondent, on the other hand, that on 22nd October, 1991, the District Magistrate, Nadia received an anonymous complaint of malpractices on the part of the petitioner. The said complaint was supported by some documentary evidences. Sub-Divisional Officer, Kalyani, was asked to enquire into the matter.
15. An affidavit of Shyamal Dutta Roy, respondent No. 6, the Chief Inspector, Food
and Supply, Kalyani, was affirmed on 30th March, 1992. Paragraph 5 of the said affidavit states as follows:
“With reference to statement made in paragraph 7 of the writ petition is denied. This deponent states that on 22nd October, 1991, the District Magistrate, Nadia received an anonymous complaint of malpractices on the part of the said M,R. Distributors. The complaints were supported by some documentary evidences. Sub-Divisional Officer, Kalyani was asked to enquire into the matter.
The Sub-District Officer, Kalyani, enquired into the matter and the allegations against the distributors were substantiated and the nature of malpractices were being established to be as follows:–
The enquiry report is annexed herewith and is marked Annexure ‘X’ to this affidavit.
The said M.R. Distributor received 73 qtls. 55 kgs. and 257 grams of W.B.S.F. (boiled) rice in 83 bags vide D.O. No. 731 of 25-9-1991. But he supplied NBSF (Raw) Rice to the tagged dealers. This misappropriation on the part of the said distributors were confirmed through cross-verification at the dealers’ (retailers) etc.
The matter was referred to D.C.F. & S., Nadia, for further verification and D.C.F., Nadia along with S.C.F. & S. Krishnanagar, visited the office-cum-godown of the food grains but in spite of repeated attempts inspection could not be done since the shop remained closed on all the occasions.
Thus contravention of para 3 and P-10 of the articles of agreement on the part of the distributor was established. All the documents are annexed and are marked Annexures-B.C.D.E. to this affidavit.”
16. I have considered the submission of the respective parties and the facts on record it appears from Annexure’X’ to the said affidavit of Shyamal Dutta Roy being affidavit in opposition on behalf of the respondent that Sub-Divisional Officer, Kalyani, Nadia, prepared in the said report of enquiry on the basis of the petition of complaint against the petitioner made to the District Magistrate, Nadia. The said complaint of the District
Magistrate, Nadia has also been annexed to the said affidavit of Syamal Dutta Roy.
17. It has been alleged in the said complaint that “District Controller Food & Supplies, Nadia issued a Delivery Order bearing No. 15034 (Printed No.) dated 25-9-1991 (Sl. No. 731) for 75 qtls. (Seventy five) of Non-Bengal Super Fine (Boiled) Rice in favour of Sri S. C. Dey and K. Bose, M.R. Distributors of Chakdaha and this stock was taken delivery from Kalyani Food Storage on 25-9-1991 but the said distributor tampered the quality of rice on the reverse of Delivery Order in connivance with his employee Sri Sujit Roy (who is the Secretary of Santipur Retroding Society, MR Distributor, Santipur) i.e. the Boiled Rice which was written on the D.C. by the Office has subsequently erased by the party and written “Raw”. The Dealing Assistant of Kalyani S.C.F. & S. Office helped in the matter and the Area Inspector of Food and Supply, Chakdaha was well aware of the fact and certified the quality on the reverse of the D.O. on 26-9-1991. On lifting the said quantity of boiled rice, the MR Distributor submitted arrival report to the Inspector, Chakdaha Sri D. K. Chakravorty that the distributors lifted raw rice. If you verify the original, duplicate, triplicate copy of the D.O. (executed D.O.S.) and Gate Pass which was issued by Food Storage Depot, Kalyani, and Road Challan issued and Food Inspector Sri A. Sarkar, Kalyani, you will be sure what malpractices has been done and this procedure are adopting from last long period.”
18. It has also been alleged that reason for supply of raw rice instead of boiled rice is that the boiled rice will fetch more higher price in the open market. Therefore, the petitioner instead of supplying raw rice in terms of the agreement has supplied boiled rice in violation of this agreement.
It also does not appear from record that any statement of evidence or enquiry made from the dealing assistant alleged has helped in the matter of eraser.
The report of the said S.D.O. Kalyani only indicates that he has personally checked the
copy of the D.O. and printed page number. The said S.D.O., however, has not made any finding on the allegation of eraser and on the word written “raw”.
19. In any event there is no finding by the Controller or formation of any opinion by him in respect of the allegations with regard to the eraser made by the petitioner. As already noted that formation of opinion by the Controller is essential for suspension of termination of the agreement.
20. I am of the view that since allegation has been made against the petitioner in respect of eraser as has been mentioned hereinbefore an opportunity should have been given to the petitioner to explain with the regard to the said allegation.
21. The fact is that the petitioner was served with another delivery order vide D.O. No. 1070 issued by the respondent No. 4 with regard to 171 bags of NBSF rice and in order to enable the petitioners to lift the said commodities the validity of the said delivery order was extended up to 9th January, 1992 by the concerned authority and the petitioners have lifted the said commodities on 9th January, 1992.
22. In this connection in the case of the State of Punjab v. Dewan Chuni Lal may be taken note of. In the aforesaid decision a departmental enquiry against Police Sub-Inspector on the ground of efficiency and dishonesty was initiated. Charges were based on adverse confidential reports of superior officers reports relating to period earlier than the year in which allowed to cross efficiency bar. It was held such report should not have been considered at all. The Supreme Court observed in this connection in paragraph 14 of the said judgment at page 2089 of the said report to the effect following:
“It is unthinkable that if the authorities took any serious view of the charge of dishonestly and inefficiency contained, in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.”
23. In the case of R.K. Gupta v. Coal India Ltd. reported in 96 Cal WN 1157 wherein I have also followed the same principle enunciated by the Supreme Court. In the instant case although charges were levelled against the petitioner, thereafter the petitioner was given with another delivery order as already noted.
24. In the premises the submissions of the learned Advocate for the petitioner that the authority has really given a go by to the penal order and as such it may be presumed the order of suspension or termination has already been given effect to, in my view cannot be said to be without any substance.
25. It has been contended on behalf of the petitioner that the Inspector, Food and Supplies, Chakdah, forwarded to the Sub-Divisional Controller, Food and “Supplies, a letter of the petitioners stating that the petitioners have “received N.B.S.F. (Raw) rice measuring 73 qtls. 55 kgs. 257 grams in 83 bags vide R.O. 731 dated September 25, 1991 from Kly. F.C.I. Godown.”
26. On the basis of the recommendation of the Inspector, the Sub-Divisional Controller, who has terminated the agreement, allowed the petitioners to sell the said quantity of raw rice.
27. Copy of the permission and endorsement appears from Annexure XI to the affidavit of the petitioners-Subhas Chandra Dey affirmed on 18th June, 1993, being the affidavit-in-reply filed by the petitioners.
28. It also appears that the petitioners have specifically stated in paragraph 13 of the writ petition “that on several dates after 25th September, 1991 the Area Inspector visited the shops in question and made inspections of the Stock Registers and other Registers and Books of Accounts and they after due inspection of the same were satisfied with the performance of the petitioners and the said authorities also put their signatures in the respective registers. Such being the position the allegation of restraining the concerned officials from having inspections of the shops in question is absolutely baseless, false and contrary to the record.”
29. It also appears from the said affidavit filed by the petitioners that “allotments in respect of each and every week were duly received by the petitioners and were also distributed amongst M.R. dealers through the office-cum-godown of the petitioners and as such the allegation of closing of the shop on all the occasions were false and motivated. The Inspector, Food and Supplies, Chakdah and other officials visited the shop-cum-godown each week and examined the stocks, registers and put his signatures on different dates during the months of September, 1991, October, 1991, November, 1991 and December, 1991 and even on January 10, 1992 when they found no discrepancy.
30. Xerox copies of the stock registers duly signed by the Inspectors (Food and Supplies) are Annexure X2 to the affidavit-in-reply of the petitioners at pages 18 to 29.
31. The said allegation has not been denied in the affidavit-in-opposition filed on behalf of the State.
32. The allegation to the effect that the petitioners did not allow the inspection, cannot be sustained.
33. Considering the facts and circumstances of the case it appears to me that the said order of suspension and/or termination dated 7th January, 1992 should be quashed and set aside. The order of suspension and/or termination dated 7th January, 1992 impugned in this case are quashed and set aside. It will however, be open to the authorities to make an appropriate enquiry and to take a decision in accordance with law after hearing the writ petitioners, if they are so advised.
34. The writ petition is, accordingly, disposed of with the above directions. There will be no order as to costs.
35. Let a xerox copy of this order be handed over to the learned advocate for the parties on usual undertakings.
36. Order accordingly.