1. By this writ application, the petitioner No. 1, an agent of S.K Oil under the West Bengal Kerosene Control Order, 1968 (hereinafter referred to as “the Control Order”) along with its two partners have challenged a suspension-cum-show cause notice dated December 10, 2003 issued by the Director of Consumer Goods, West Bengal and also a subsequent order dated January 9, 2004 passed by the said Director cancelling agency-licence of the petitioner No. 1 in exercise of power conferred by paragraph 9 of the Control Order.
2. Initially, the grievance of the petitioners was twofold.
3. First, the Director of Consumer Goods, West Bengal, is not vested with the authority to cancel an agency-licence in the District of Purulia and it is for the District Magistrate of the District to take the appropriate decision. Secondly, even if, it is assumed for the sake of argument that the said Director has such power, the purported order dated January 9, 2004 having been communicated to the petitioners by fax on January 30, 2004, i.e beyond 30 days from the issue of order of suspension dated December 10, 2003, was liable to be set aside.
4. On February 17, 2004, this matter was moved for the first time after service of the copy of the writ application upon the State respondent. Since pure questions of law were agitated by the petitioners, this Court, to enable Ms. Chakraborty, the learned advocate appearing for the State respondents to take instruction in the matter, fixed February 27, 2004, for further hearing with a direction upon Ms. Chakraborty to produce the records.
5. On February 27, 2004, Ms. Chakraborty produced records showing that the decision impugned was really faxed to the petitioners on January 30, 2004. Ms. Chakraborty further informed the Court that the hearing, however, had taken place on January 7, 2004, and the order was actually passed on January 9, 2004. On that day, Ms. Chakraborty emphatically asserted before this Court that she had definite instruction that on January 9, 2004, immediately after passing of the order, the officer concerned tendered the order to a representative of the petitioners but he refused, as a result, subsequently the order was sent by fax. Ms. Chakraborty however conceded that such tender and refusal were not reflected from the records of the case. Such allegations of tender and refusal having been disputed by Mr. Saktinath Mukherjee, the learned advocate appearing on behalf of the petitioners, the respondents were directed to file affidavit asseverating such facts within a fortnight from that date. The petitioners were directed to give affidavit-in-reply within a week thereafter and the matter was directed to be listed after three weeks.
6. Ultimately, the matter came up for hearing on March 30, 2004, and the learned advocate appearing for the State respondent relied upon the original records.
7. At that time, it appeared from page 71 of the records that on December 15, 2003, there was an endorsement to the following effect:
“As desired by the Hon'ble MIC, the file be sent to him for favour of his perusal.
SD/illegible
15/12/2003”
8. It further appears that below the aforesaid endorsement, following remarks are made in green ink:
“PI. re-submits the file along with order of hearing for my approval.
SD/illegible
18/12”
9. Mr. Chakraborty, the learned counsel appearing on behalf of the State respondent as the leader of Ms. Chakraborty, after taking instruction from Sri Subhas Chandra Roy, Assistant Director, Consumer Goods, who looks after the legal matters, submitted before this Court on that day that the endorsement dated December 15, 2003 mentioned above was in the handwriting of Sri Sandip Bishnu, Assistant Director, Consumer Goods, Agent Cell.
10. Sri Subhas Chandra Roy, however, could not definitely tell Mr. Chakraborty whether the endorsements dated “18/12” were made by the Minister-in-charge or not. He submitted that further instruction was necessary for ascertaining whether the said endorsement was really made by the Minister-in-charge.
11. To enable him to take such instruction, the matter was adjourned to April 6, 2004, and this Court directed that the records should be kept in the safe custody of the Register, Original Side until further order.
12. On April 6, 2004, when the matter again came up for hearing, Mr. Chakraborty, appearing for the State placed before this Court a written instruction given to his learned junior admitting that the remarks in green ink mentioned in the order dated March 30, 2004, were those of the Minister concerned.
13. In spite of the admission made by the officers of the State respondents that the Minister concerned interfered with the duties Conferred upon the Director of Consumer Goods, this Court issued a notice upon the said Minister giving him an opportunity to verify from the records whether those endorsements were really made by him. Notwithstanding such opportunity being given, the Minister concerned did not appear before this Court to deny his endorsement or the signature. It is, therefore, established beyond any doubt that those endorsements in green ink were really made by the said Minister.
14. On the basis of the aforesaid available materials, Mr. Asoke Banerjee, the learned counsel appearing on behalf of the petitioners has strenuously contended that apart from the points taken in this writ application, the order impugned should be quashed simply on the ground of unauthorized interference of the Minister concerned when the Control Order has vested the power to decide the question of cancellation of licence with the Director of Consumer Goods. According to Mr. Banerjee, the Director of Consumer Goods was guilty of dereliction of duty by sending the file to the Minister concerned for approval of his order. According to Mr. Banerjee, it is apparent that the Minister concerned was interested in this matter and for that reason, he asked the Director to act as per his guidance and the Director humbly surrendered by sending the file to the Minister for approval, as a result, although the order impugned was passed on January 9, 2004 and in the last portion of the order there is specific direction for communication of such order to the petitioner by fax, such communication was made long thereafter on January 30, 2004 by fax.
15. Mr. Banerjee has further contended that the Director of Consumer Goods in this case has not only resorted to mendacity before this Court, but also has connived with an upper division clerk for the purpose of interpolation of the records. Mr. Banerjee, in this connection, points out that on February 27, 2004, when the records were produced for the first time, Ms. Chakraborty, the learned counsel appearing on behalf of State, submitted before this Court that she had definite instruction that immediately after passing of the order impugned, the officer concerned tendered the order to the petitioner but the petitioner refused to accept such order, and consequently, the same was subsequently sent by fax. Mr. Banerjee further points out by referring to my order dated February 27, 2004 that on that day, Ms. Chakraborty conceded before this Court that such tender and refusals were not reflected from the records of the case. However, on the next date, namely, March 30, 2004, when the records were again produced, it appeared that there was a note in the file dated January 30, 2004 showing that a representative of the petitioner allegedly came on January 9, 2004, saw the order, but refused to receive the same. Mr. Banerjee contends that such endorsement has been subsequently inserted as will appear from the fact that if such endorsement was earlier there, Ms. Chakraborty on February 27, 2004 could have easily shown such endorsement and there was no occasion for conceding the fact that the records did not indicate any tender or refusal as recorded in my order dated February 27, 2004.
16. Mr. Banerjee further submits that the Director of Consumer Goods in order to avoid filing of affidavit against the supplementary affidavit affirmed on behalf of the petitioners deliberately took a false plea through his learned advocate that he had been sent to Manipur on election duty and that he would not be coming back before May 25, 2004.
17. Mr. Banerjee contends that it has already been proved that during the aforesaid period he was all along in Kolkata and performed duty in the Kolkata-office. Mr. Banerjee, thus, prays for the relief claimed in the application.
18. This application is opposed by the State of West Bengal and Mr. Chakraborty, the learned advocate appearing on its behalf, has seriously disputed all the points raised by the petitioners. According to Mr. Chakraborty, the suspension order having been passed on December 10, 2003, and the order of cancellation having been passed within 30 days from such order, there was no illegality in passing such order. He contends that the date of communication is immaterial for the purpose of scrutinising the validity of such order. Mr. Chakraborty further contends that for the cancellation of licence of an agent, Director of Consumer Goods is the competent authority. As regards the allegation of the unauthorised interference by the Minister, he contends that the Minister being in charge of the entire department, has the right to supervise all the activities of the department including that of the Director of Consumer Goods. Thus, Mr. Chakraborty proceeds, the Minister was quite justified in asking the Director to send the file for his inspection. Mr. Chakraborty thus prays for dismissal of the writ application.
19. At the very outset, I make it plain that I am not at all impressed by the submission of the learned advocate for the petitioners that the District Magistrate is the competent person to rescind a licence of an agent. It is rightly pointed out by Mr. Chakraborty that a conjoint reading of Para 4 and Para 9 of the Control Order will make the position clear that it is the Director of Consumer Goods who is empowered to deal with the question of cancellation of the licence of an agent for misconduct.
20. The most important question, however, involved in this case is whether the Minister, Food and Supplies, can ask the Director to send a file involving an allegation of misconduct of an agent and direct him to retransmit the final order for his approval.
21. To find out answer to the aforesaid question, it is necessary to investigate the scope and extent of the Control Order.
22. The Control Order was made in exercise of the power conferred by sub-section (1) of section 3 of the Essential Commodities Act, 1955, read with clauses (d), (e), (h) and (j) of sub-section (2) of that section and section 7(1) of the said Act. Under the Control Order, the Minister, Food and Supplies, has nothing to do with the grant of licence or cancellation of the same on the ground of alleged misconduct. Para 4 of the Control Order makes the Director of the Consumer Goods the licence granting authority, and Para 9 thereof vests the said Director with the power to investigate the allegation of misconduct and if such allegation is found to be true, to cancel the licence. It is now settled position of law that if a statute prescribes the mode of doing a particular thing, that must be done in that way. In the case before us, the Control Order, a delegated piece of legislation, having fixed the responsibility to investigate the allegation against the agent upon the Director, the Minister overstepped his limit by interfering with the duties of the Director prescribed by the statute. I find no substance in the contention of Mr. Chakraborty, the learned counsel for the State, that the minister, being the administrative “Head” of the department, has the right to supervise all the activities of his subordinate officers including that of a Director even in the matter of discharging statutory duty. In my view, the Minister was oblivious of the fact that he was bound by the mandate of the statute and it was his duty to respect the desire of the legislature.
23. At this juncture, I cannot help mentioning the unbecoming attitude of the Director. When the Minister called for the file, it was his duty to point out that the statute having invested him with the duty to investigate the allegation against the agent, it was not possible for him to oblige the Minister by sending the file and to take approval of the Minister before taking final decision. In stead of doing that, he readily sent the file and as per direction of the Minister, after passing of the order impugned, sent the same to the Minister for approval, and consequently, the order, although passed on January 9, 2004, could not be faxed to the petitioner before January 30, 2004, till the Minister accorded approval. In order to conceal such fact, the Director made out a false case in the affidavit that the order was shown to a representative of the petitioners, but he having refused to receive the same, the same was sent subsequently by fax. The Director even did not hesitate to interpolate the records by incorporating an order subsequently, but in doing so, he either overlooked or was unaware of the fact that his learned advocate had already admitted before this Court that “such tender and refusal were not reflected from the records”. In my view, the learned advocate for the petitioners rightly contended that if those endorsements were already on record, the learned counsel for the State on that day would not have made such submission and would have shown such endorsements before this Court and this Court also would not pass a direction for asserting such fact by affidavit. I, in this connection, find substance in the contention of the learned advocate for the petitioners that in the order dated January 9, 2004, there being specific direction for sending the order by fax, there was no reason for waiting till January 30, 2004 and in the affidavit also, no explanation for the delay has been offered. Thus, the only possible reason for the delay was that the file was again sent to the Minister as per his written order, for approval. The most excruciating part of this case is that when the illegal interference of the Minister, as mentioned above, was detected, the Director started avoiding filing of affidavit to the supplementary affidavit given by the petitioners, and deliberately took a false plea that he was posted at Manipur on election duty and would not be available before May 25, 2000. The petitioners, however, by filing supplementary affidavit pointed out that the Director was very much attending his office at Kolkata. The office of the Director, however, confirmed that the Director passed several orders on various days during such period in the office at Kolkata. Even then, the Director did not feel the necessity of explaining his conduct and on the contrary, his learned advocates insisted on disposal of the case on the basis of the records kept in custody of the Court.
24. Therefore, in this case, it is well-established that the Director could not discharge his statutory duty conferred under Para 9 of the Control Order freely and was guided by the direction of the Minister. The Minister, in spite of having opportunities to explain the reason why did he call for records of a case of the District Purulia involving allegation of misconduct of an agent and what prompted him to direct an appropriate statutory authority to seek his approval before passing final order, decided to remain absent for the reason best known to him; equally curious is the conduct of the Director, who took shelter under falsity in order to avoid discloser of the truth before the Court. Thus, the manner in which the licence of the petitioner No. 1 has been cancelled proves beyond any doubt that the statutory requirements of the Control Order have not been complied with in cancelling the licence of the petitioner No. 1 and the aforesaid facts are sufficient for setting aside the order impugned in this application. In other words, the licence of the petitioner No. 1 has been cancelled by not following “the due process of law”.
25. In view of my aforesaid findings, although the other point involved in this application has become academic, I propose to answer that point also, as the learned counsel for the parties laboriously advanced their submissions on that point.
26. As indicated earlier, the question is if an order of cancellation of licence is not communicated to the agent within 30 days from the date of passing of the earlier order of suspension, whether such order of cancellation loses its force.
27. Both Mr. Saktinath Mukherjee and Mr. Asoke Banerjee, the learned senior advocates, appearing for the petitioners vehemently contended by referring to Paragraph 9 of the Control Order that if after passing of an order of suspension, the final order of cancellation is not communicated to the agent within 30 days from the passing of the order of suspension, the order of cancellation of licence ceases to have any effect and at the same time the earlier order of suspension also becomes ineffective. In support of such contention they have placed strong reliance upon two decisions of this Court, one delivered by G.R Bhattacharya J, and the other by Altamas Kabir J. Mr. Chakraborty appearing on behalf of the State respondents on the other hand has distinguished those decisions by pointing out that in those decisions, the order of cancellation itself was passed beyond 30 days from the order of the suspension whereas in the case before us, the order of cancellation was passed on January 9, 2004, i.e on the 30th days from the passing of the order of suspension dated December 10, 2003. According to Mr. Chakraborty, simply because such order was communicated to the agent subsequently, such fact cannot invalidate the order of cancellation of licence. In other word, Mr. Chakraborty contends that the date of communication of the order has no significance.
28. To appreciate the aforesaid question, it will be pertinent to refer to Paragraphs 9 & 10 of the Control Order. Those are quoted below:
“Paragraph 9. Cancellation or suspension of licence.—If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this Order or any condition of the licence or any direction given under Paragraph 12 of this Order, (or any order issued under the Essential Commodities Act, 1955 [Act 10 of 1955]), he may forthwith temporarily suspend the licence:
Provided that the agent or the dealer whose licence has been so suspended shall be given an opportunity of being heard before cancellation of the licence or revocation of the order of suspension of licence finally by an order in writing to be made within 30 days from the date of suspension of the licence. The order shall be passed ex parte if the dealer whose licence has been so suspended fails to appear at the hearing.
(Emphasis Supplied)
Paragraph 10. Appeal.—Any person aggrieved by an order passed under Paragraph 8 or Paragraph 9 of this order may within 30 days from the date of the order, prefer an appeal,
(a) in Calcutta,-
(i) where the order is passed by the Director of Consumer Goods, Department of Food and Supplies, to the State Government,
(ii) where the order is passed by any other officer authorised by the State Government under Clause (d) of Paragraph 3, to the Director of Consumer Goods, Department of Food and Supplies, and
(b) elsewhere,-
(i) where the order is passed by the District Magistrate or the Deputy Commissioner of District, to the State Government,
(ii) where the order is passed by any officer authorised by the District Magistrate or the Deputy Commissioner of a District under Clause (e) of Paragraph 3, to the District Magistrate or the Deputy Commissioner, as the case may be, of the District.”
29. After going through the aforesaid two paragraphs, I find that against an order of cancellation of licence, there is a provision of appeal to be availed of within 30 days from the date of the order. There is, however, no power conferred upon the appellate authority to entertain such appeal after the period of limitation by condoning the delay. If I accept the contention of Mr. Chakraborty, the learned counsel appearing for the State that the date of communication of the order is insignificant, in that case, the right of appeal conferred upon the aggrieved agent against an order of cancellation can easily be frustrated by communicating the order after the expiry of 30 days from the date of the order. Therefore the phrase “by an order in writing to be made” appearing in the proviso to the Paragraph 9 is to be construed as “by an order in writing to be communicated” and so long the order is not communicated, it should be presumed that the order has not been passed and consequently, a duty is cast upon the authority concerned to communicate the order to the aggrieved, either direct or constructively. Mere passing of an order and keeping it in the file will not fulfil the requirement of the said Paragraph 9.
30. Mr. Baneijee, the learned advocate appearing for the petitioners, has in this connection placed strong reliance upon a decision of the Supreme Court in the case of Assistant Transport Commissioner, Uttar Pradesh v. Nand Singh, [reported in 179 ELT (J 510) where the Apex Court while considering section 35 of the Central Excise and Salt Act, 1944 held that the date of communication of the order will be the starting point of limitation for filing an appeal and not the date of the order, because, the order would be effective against the person affected by it only when it comes to the knowledge either direct or constructively, otherwise not. The Supreme Court further held that mere writing of an order in the file, kept in the office of the authorities, is no order in the eye of law.
31. The aforesaid decision of the Supreme Court supports the contention of the petitioners that the order of cancellation, for all practical purposes, should be deemed to have been passed on January 30, 2004 when the same was faxed for communication to the petitioners and served upon them. Thus, the order of cancellation of licence was, in the eye of law, passed beyond 30 days from the date of passing the order of suspension and consequently, the order of suspension had automatically ceased to have any effect from January 10, 2004, and the order of cancellation not having been passed in accordance with law within 30 days from December 10, 2003, the Director could not pass any such order beyond that date. Thus, the order impugned is liable to be quashed also on the aforesaid ground.
32. I, therefore, set aside the order dated January 9, 2004, passed by the Director of Consumer Goods, cancelling the licence of the petitioner No. 1. The order of suspension dated December 10, 2003 also stands revoked. The respondents are directed to immediately restore supply of kerosene to the petitioner No. 1.
33. The writ application thus succeeds with costs, which I assess at Rs. 20,000/-, to be borne equally by the Minister concerned and the Director of Consumer Goods personally. As the order impugned is the outcome of extra statutory process resorted to by the Minister, and accepted by the Director without any protest, the public exchequer cannot be saddled with the liability of the consequences, arising thereof.
34. The petitioners are also at liberty to file separate suit against those respondents for recovery of damages actually suffered by them for the aforesaid ultra vires actions of the respondents.
Later:
35. The records of the case, kept in the safe custody of the Registrar, Original Side, be returned to the learned Advocate for the State respondents.
36. After this order is passed Ms. Chakraborty, the learned Counsel, appearing on behalf of the State respondents, prays for stay of operation of the order. In view of what have been stated above, I refuse such prayer.
37. Xerox certified copy of this order be given to the parties by June 11, 2004, if applied for.
Bhaskar Bhattachary, J.:
Writ application succeeds.
S.K.P