Pranab Kumar Chattopadhyay, J.

1. The appellant/petitioner No. 1 herein is licensed to carry on business as an agent in kerosene. The said appellant/petitioner No. 1 used to receive supply of kerosene oil from Indian Oil Corporation as an agent for distribution amongst the dealers tagged with the said appellant/petitioner No. 1 as per monthly allocation made by the concerned authority. The appellant/petitioner No. 1 being the holder of licence to carry on business as an agent of kerosene oil (S.K. Oil) is also bound to comply with the conditions specifically mentioned in the said licence. On 08/04/2013 Sub-Divisional Controller, Food and Supplies, Burdwan (in short "SCFS") issued a notice alleging that the appellant/petitioner No. 1 had given excess delivery of kerosene oil for the period from January 2012 to June 2012 and directed the appellant/petitioner No. 1 to give an explanation for the same.

2. The said notice was replied on behalf of the appellant/petitioner No. 1 on 16th April, 2013. Thereafter by the written communication dated 26th April, 2013, SCFS directed the appellants/petitioners to appear for personal hearing on 3rd May, 2013.

3. The representative of the appellants/petitioners appeared before the SCFS on 3rd May, 2013 and replied to the queries made by the said SCFS. From the records it appears that the said SCFS, Burdwan by the written communication dated 16th May, 2013 forwarded the entire case records to the Director, Consumer Goods for his perusal and necessary action.

4. The learned advocate of the appellant/petitioner No. 1 submitted a representation before the Director of Consumer Goods on 12th June, 2013. In the said representation, the Director was specifically informed by the learned advocate of the appellant No. 1 that there is no scope for taking any action at his end since the procedure was already completed at the end of the SCFS, Burdwan.

5. The learned senior counsel of the appellants/petitioners submitted that the Joint Director passed an order on 18th June, 2013 whereby the said Joint Director sought for opinion of the law officer in the matter. It has also been submitted on behalf of the appellants that the said law officer opined that the SCFS, Burdwan had no jurisdiction to take any step against the appellant/petitioner No. 1 and also opined that the steps taken by the SCFS, Burdwan in respect of the appellant/petitioner No. 1 is void and therefore, no penalty can be imposed on the basis of the report of the said SCFS, Burdwan.

6. In any event, from the records, we find that the Director of Consumer Goods, West Bengal issued a show-cause notice on 26th June, 2013 to the appellant/petitioner No. 1 on the self-same allegations as contained in the earlier show-cause notice issued by the SCFS, Burdwan on 8th April, 2013. The learned advocate of the appellant/petitioner No. 1 replied to the said show-cause notice on 28th June, 2013.

7. Subsequently, an opportunity of hearing was given to the appellants/petitioners on 17th July, 2013.

8. The appellants/petitioners were thereafter served with an order dated 22nd July, 2013 passed by the Director of Consumer Goods on 12th August, 2013 imposing penalty as hereunder:

"i) a penalty of Rs. 26,08,816/-

ii) penalty of reduction of monthly allocation of kerosene by 12,000 liters."

9. Mr. Sakti Nath Mukherjee, learned senior counsel of the appellants/petitioners submitted that in view of the provisions of paragraph 9 of the West Bengal Kerosene Control Order, 1968, proceeding before the Director, assuming the same to be valid, legal and within jurisdiction, lapsed with the expiry of 30 days after the date of issuance of the show-cause notice by the Director.

10. Mr. Mukherjee referred to and relied on a decision of this court in this case of Rani Sati Kerosene Supply Company & Ors. v. The State of West Bengal & Ors., reported in, 2005 (4) CHN 264 (Paragraphs 29, 30 and 31).

11. Mr. Mukherjee further submitted that the proceeding before the Director, Consumer Goods was patently without jurisdiction. Referring to paragraph 9 of the Control Order, Mr. Mukherjee submitted that the power of cancellation or suspension can be exercised by the District Magistrate in the present case since such power should be exercised by the Director or the District Magistrate having jurisdiction. Mr. Mukherjee submitted that in the present case, the District Magistrate, Burdwan is the competent authority to exercise power under the Control Order and not the Director of Consumer Goods.

12. In order to appreciate the expression 'having jurisdiction', Mr. Mukherjee referred to paragraph 10 of the Control Order. In paragraph 10 it is provided that in Calcutta the Orders under paragraphs 8 and 9 are to be passed by the Director of Consumer Goods and the appeal will lie to the State Government and it is further provided in paragraph 10 that 'elsewhere' i.e. to say outside Calcutta where the Order was passed by the District Magistrate or the Deputy Commissioner, the appeal shall lie to the State Government. It is further provided that when the Order is passed by any other Officer authorised by the District Magistrate or the Deputy Commissioner of a District the appeal shall lie to the District Magistrate or the Deputy Commissioner as the case may be.

13. Mr. Mukherjee further submitted that having regard to the provisions of paragraphs 9 and 10, there cannot be any doubt that in respect of a Kerosene Oil Agent operating in the District of Burdwan, it is the District Magistrate and not the Director, who is competent to pass an order under paragraph 9.

14. Mr. Mukherjee also submitted that the expression 'District Magistrate' has been defined in paragraph 3 (e) of the Control Order in order to include any person not below the rank of Sub-Divisional Controller of Food and Supplies, Government of West Bengal. In the present case, Sub-Divisional Controller issued the show-cause notice which was subsequently issued by the Director on the self-same allegations. Mr. Mukherjee further submitted that in the present case, Sub-Divisional Controller did not take any decision within 30 days and forwarded the entire case records to the Director of Consumer Goods on 16th May, 2013. There can be no doubt that when the records were forwarded, the proceeding had lapsed in view of the expiry of 30 days from the date of the issuance of the show-cause notice and also following the principles laid down by this court in the case of Rani Sati Kerosene Supply Company & Ors. v. The State of West Bengal & Ors. (supra).

15. It has been submitted on behalf of the appellants, that in the order dated 22nd July, 2013 passed by the respondent Director, it has been specifically recorded that the Sub-Divisional Controller, Food and Supplies, Burdwan has the authority to ask for explanation regarding distribution of S.K. Oil within his jurisdiction.

16. Mr. Mukherjee, learned senior counsel of the appellants submitted that the initiation of the proceeding by the Sub-Divisional Controller was, therefore, well within his jurisdiction and the said Sub-Divisional Controller could not and should not have sent the records to the Director after expiry of 30 days when the proceeding stood lapsed.

17. Mr. Mukherjee however, submitted that a lapsed proceeding could not only be revived and specially by the Director of Consumer Goods, but in terms of paragraph 10 of the Control Order Director of Consumer Goods had no jurisdiction to deal with the matter in the district of Burdwan. Mr. Mukherjee also submitted that when the Sub-Divisional Controller had the authority and jurisdiction to initiate proceedings in order to ask for explanation regarding distribution of S.K. Oil, there can be no difficulty for the said Sub-Divisional Controller for concluding the proceeding also.

18. Mr. Mukherjee further submitted that the Director, Consumer Goods passed the order on 22nd July, 2013 but the same was served upon the appellants/petitioners only on 12th August, 2013. Mr. Mukherjee specifically urged before this court that mere mentioning of the date in an order cannot maintain the validity of the said order unless the said order is despatched from the office of the maker of the order i.e., that is Director of Consumer Goods. It has been specifically submitted on behalf of the appellants/petitioners that nothing has been produced before this court on behalf of the respondents in order to establish that the order dated 22nd July, 2013 was served before expiry of 30 days from the date of the show-cause notice dated 26th June, 2013 issued by the Director.

19. The learned senior counsel of the appellants submitted that the Joint Director on 18th June, 2013 had decided that in view of issuance of the notice and hearing by the Sub-Divisional Controller, penalty of Rs. 2-3 lakhs should be imposed. The said decision of the Joint Director was however, upset by the Law Officer. Mr. Mukherjee submitted that the said Law Officer had no role to play under the Control Order and the interference of the said Law Officer with the decision making process was wholly without jurisdiction.

20. Referring to the decision of this court in the case of Rani Sati Kerosene Supply Company & Ors. v. The State of West Bengal & Ors. (supra), Mr. Mukherjee submitted that "an order in writing to be made" should be construed as 'order in writing to be communicated'. Mr. Mukherjee also submitted that so long the order is not communicated, it should be presumed that the order has not been passed because according to Mr. Mukherjee, a mere passing of an order will not fulfill the requirements of paragraph 9 of the Control Order of 1968.

21. The learned advocate for the respondents submitted that a physical inspection was made by the Area Inspector attached to the office of the Sub-Divisional Controller, Food & Supplies, Burdwan, at the S.K. Oil Depot of the appellant and the said Area Inspector submitted a report to the Sub-Divisional Controller, Food & Supplies, Burdwan alleging misappropriation of 71,494 liters of S.K. Oil by the appellant/petitioner No. 1 herein.

22. Upon receiving the aforesaid report, Sub-Divisional Controller, Food & Supplies, Burdwan issued a notice on the appellant company on April 8, 2013 seeking an explanation in black and white in respect of the aforesaid discrepancy. The learned counsel for the respondent further submitted that the aforesaid notice under no circumstances can be treated as a show cause notice as the Sub-Divisional Controller is not the competent authority to take any appropriate action relating to cancellation or suspension of the licence of the appellant/writ petitioner No. 1. The learned counsel of the respondents also submitted that the Sub-Divisional Controller, Food & Supplies, Burdwan forwarded the entire case records to the District Controller, Food & Supplies, Burdwan since the said Sub-Divisional Controller was not the competent authority to take any step relating to cancellation or suspension of the licence of the appellant/writ petitioner No. 1.

23. The learned advocate for the State further submitted that the District Controller, Food & Supplies, Burdwan also forwarded the aforesaid case records to the Director of Consumer Goods for taking appropriate decision as according to the State respondents, the Director of Consumer Goods was the competent authority to initiate proceeding relating to cancellation or suspension of the licence of the appellant/writ petitioner No. 1.

24. Mr. Sengupta, learned advocate representing the State-respondents submitted that after scrutinizing the case records of the respondent/appellant No. 1, the Director of Consumer Goods being the Licensing Authority directed M/s. R.K.B.K. Ltd., S.K. Oil Agent, Borehat, Burdwan, to show cause to the charges of misappropriation of 71494 liters of S.K. Oil during the period from January, 2012 to June, 2012 vide office Memo No. CG/K.Oil/AGT/Burd(s)/5/82/(Pt)/160 dated 26/06/2013.

25. Mr. Sengupta submitted that in respect of the aforesaid show cause notice, the appellant/writ petitioner No. 1 was given adequate opportunity of hearing including personal hearing and the Director of Consumer Goods, in exercise of his power conferred under paragraph 9 of the West Bengal Kerosene Control Order, 1968, as amended by order dated July 22, 2013 imposed penalty of Rs. 26,08,816/- on M/s. R.K.B.K. Ltd. and the appellant/writ petitioner No. 1 M/s. R.K.B.K. Ltd. was directed to pay such amount within seven days from the date of receipt of the order and further penalty reducing the monthly allocation by 12000 liters for a period of one year with effect from 01.09.2013 was imposed on the appellant/writ petitioner No. 1.

26. Mr. Sengupta submitted that the entire process starting from initiation of show cause notice upto the passing of the order at the behest of the Director of Consumer Goods was completed within the statutory period of 30 days from the date of serving of the show cause notice as provided under Clause 9 of the West Bengal Kerosene Control Order, 1968.

27. Mr. Sengupta submitted that in case of an agent, Director of Consumer Goods is the competent authority to grant licence as well as to take appropriate steps relating to cancellation or suspension of such licence and the Sub-Divisional Controller has got no authority to take any disciplinary action against any agent within West Bengal.

28. Mr. Sengupta further submitted that if any action is taken at the behest of the Sub-Divisional Controller, Food & Supplies Department, Government of West Bengal against any agent, the order passed by the Sub-Divisional Controller relating thereto would be treated as a nullity and there is no conflict relating to conferment of jurisdiction upon the Director of Consumer Goods to initiate disciplinary proceeding relating to cancellation and/or suspension of licence of an agent within West Bengal, but no such power has been vested upon the Sub-Divisional Controller to initiate disciplinary proceeding relating to cancellation or suspension of the licence of an agent in terms of the provisions made in West Bengal Kerosene Control Order, 1968.

29. Mr. Sengupta specifically submitted that the order of the authority would become operative and/or effective when the same was signed by the authority and not the date when the said order was communicated. Mr. Sengupta referred to and relied on the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Qimat Rai Gupta & Ors., reported in, (2007) 7 SCC 309 paragraphs 15, 16 and 25 : (AIR 2007 SC 2742, paras 15, 16 & 26).

30. In the present case following issues have been raised for adjudication:

"a) Who is the competent authority to take disciplinary action either by cancellation or suspension of the licence of a S.K. Oil agent appointed in a district outside the Calcutta?

b) Whether the order of cancellation or suspension of licence in terms of paragraph 9 of West Bengal Kerosene Control Order will become effective on the date of passing of the said order or when the said order is communicated to the concerned party?"

31. In the present case, the appellant/writ petitioner No. 1 was granted Kerosene Oil Agent licence for distribution of Kerosene Oil (S.K. Oil) to the S.K. Oil dealers in the district of Burdwan.

32. In terms of aforesaid licence, appellant/writ petitioner No. 1 was authorised to carry on business as an agent of S.K. Oil in the district of Burdwan. The Sub-Divisional Controller, Food & Supplies, Burdwan initially issued a show-cause notice to the appellant/writ petitioner No. 1 but the said Sub-Divisional Controller instead of taking final decision on the basis of the aforesaid show-cause notice forwarded the records to the Director of Consumer Goods for necessary action. The Director however, issued a fresh show-cause notice to the appellants on the self-same allegations as contained in the initial show-cause notice issued by the Sub-Divisional Controller, Food & Supplies, Burdwan on 8th April, 2013 and ultimately, passed an order on 22nd July, 2013 imposing penalty on the appellants herein which was received by the appellants/writ petitioners on 12th August, 2013.

33. Paragraph 9 of the West Bengal Kerosene Control Order provides for cancellation or suspension of licence which is set out hereunder:

"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, he may forthwith ask the Agent or the Dealer to showcause for the violations made to suspend the licence:

Provided that the agent or the dealer who has been asked to show-cause or whose licence has been suspended shall be given an opportunity of being heard and the Director or the District Magistrate having jurisdiction shall pass an order in writing within 30 days from the date of serving the show cause notice or suspension of the licence taking any or all of the actions given below:

(i) he may let off the Agent or Dealer if sufficient cause has been shown;

(ii) he may pass an order by imposing a penalty which according to the gravity of the violations made will not be less than Rs. 10,000 in case of an Agent and Rs. 2,000 in case of a Dealer and revoke the suspension order if already served;

(iii) he may cancel the licence:

Provided that the order shall be passed ex parte if the Agent or the Dealer whose licence has been so suspended or on whom show cause notice has been served fails to appear at the hearing."

34. In terms of aforesaid paragraph 9, power of cancellation or suspension of licence can be exercised by the Director or the District Magistrate having jurisdiction. In paragraph 10, it has been made clear that the appeal would lie to the State Government in respect of the order passed by the Director of Consumer Goods in Calcutta.

35. In paragraph 10, it has been made clear that any person aggrieved by the order passed under paragraph 8 or paragraph 9 of the West Bengal Kerosene Control Order may prefer an appeal to the State Government where the order has been passed by the Director of Consumer Goods in Calcutta and elsewhere, where the order has been passed by the District Magistrate or Deputy Commissioner of a district. The said paragraph 10 is set out hereunder:--

"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 to the State Government in the Food and Supplies Department--

(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) * * * * *

(b) elsewhere,--

(i) where the order is passed by the District Magistrate or the Deputy Commissioner of a district, to the State Government,

(ii) where the order is passed by any other 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."

36. In paragraph 10, it has been made clear that in Calcutta, order is passed by the Director of Consumer Goods and elsewhere, order is passed by the District Magistrate or the Commissioner of a district. In the present case, the appellant/writ petitioner No. 1 was appointed as S.K. Oil agent in the district of Burdwan and therefore, the District Magistrate, Burdwan is the competent authority to exercise jurisdiction and/or authority for cancellation or suspension of licence of the said appellant/writ petitioner No. 1.

37. The expression 'District Magistrate' has been defined under paragraph 3(e) to include any person not below the rank of a Sub-Divisional Controller of Food and Supplies, Government of West Bengal, authorized in that behalf by the District Magistrate or the Deputy Commissioner.

38. The Sub-Divisional Controller, Food and Supplies, Burdwan had rightly exercised his authority and/or jurisdiction in paragraph 9 of the West Bengal Kerosene Control Order, 1968 by issuing show-cause notice to the appellant/writ petitioner No. 1. The said appellant/writ petitioner No. 1 also submitted to the jurisdiction of the Sub-Divisional Controller of Food and Supplies, Burdwan without raising any objection by filing reply to the said show-cause notice. The said Sub-Divisional Controller also granted opportunity of personal hearing to the appellants herein and the representative of the appellants appeared before the Sub-Divisional Controller, Food and Supplies and replied to the queries made by the Sub-Divisional Controller, Food and Supplies.

39. Surprisingly, the said Sub-Divisional Controller instead of passing an appropriate order forwarded the case records to the Director who had no authority and/or jurisdiction to take any decision under paragraph 9 of the West Bengal Kerosene Control Order, 1968. The respondent/Director instead of returning the records to the Sub-Divisional Controller, Food and Supplies, assumed the jurisdiction and issued a further show-cause notice on the self-same allegation as contained in the show-cause notice issued earlier by Sub-Divisional Controller, Food and Supplies.

40. Ultimately, the Director passed the final order imposing penalty on the appellant/writ petitioner No. 1 herein on 12th August, 2013. The aforesaid order imposing penalty upon the appellant/writ petitioner No. 1 herein, cannot be sustained in the eye of law since the Director had no authority and/or jurisdiction to exercise power under paragraph 9 of the West Bengal Kerosene Control Order, 1968 for cancellation or suspension of licence since the appellant/writ petitioner No. 1 was granted licence for carrying on business as a S.K. Oil agent in the district of Burdwan and we have already held that the District Magistrate, Burdwan is the competent authority to take any decision in respect of the appellant/writ petitioner No. 1 in terms of paragraph 9 of the West Bengal Kerosene Control Order, 1968.

41. Furthermore, in the present case the Director of Consumer Goods issued a fresh show-cause notice on 26th June, 2013 and allegedly passed the order imposing penalty on 22nd July, 2013 which was served on the appellants on 12th August, 2013. Now it has to be decided whether the Director of Consumer Goods passed the order imposing penalty within 30 days from the date of serving the show-cause notice in terms of paragraph 9 of the West Bengal Kerosene Control Order, 1968.

42. The Director of Consumer Goods issued the show-cause notice to the appellant/writ petitioner No. 1 on 26th June, 2013 and the order imposing penalty was allegedly passed on 22nd July, 2013, although the same was served on the appellant on 12th August, 2013 i.e., long after expiry of the period of 30 days.

43. Mr. Mukherjee, learned senior counsel of the appellants/writ petitioners submitted that the order under paragraph 9 passed by the competent authority in writing within 30 days from the date of serving the show-cause notice should mean the communication of the order in writing within the aforesaid period of 30 days and not the signing of the order by the concerned authority. The aforesaid issue was earlier considered by this Court in the case of Rani Sati Kerosene Supply Company & Ors. v. The State of West Bengal & Ors. (supra) wherein Bhaskar Bhattacharya, J. (as His Lordship then was) held:

"Para- 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."

44. Mr. Sengupta relied on a decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Qimat Rai Gupta & Ors. (AIR 2007 SC 2742, para 28) (supra), the aforesaid decision in our opinion can be of no help to the respondents herein. The Hon'ble Supreme Court in the aforesaid decision specifically made it clear that where communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved then the said order has to be communicated. The relevant paragraph of the aforesaid decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi v. Qimat Rai Gupta & Ors. (supra) is set out hereunder:

"Para- 27. An order passed by a competent authority dismissing a Government servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika (AIR 1966 SC 1313) but an order placing a Government servant on suspension does not require communication of that order. (See State Of Punjab v. Khemi Ram† ..) (AIR 1970 SC 214). What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby the order is required to be communicated."

(Emphasis supplied)

45. For the reasons discussed hereinabove, we hold that the Sub-Divisional Controller, Food and Supplies, Burdwan lawfully initiated the proceeding against the appellant/writ petitioner No. 1 by issuing show-cause notice but did not conclude the same within 30 days as required under paragraph 9 of the West Bengal Kerosene Control Order, 1968.

46. We further hold that the Director of Consumer Goods had no jurisdiction and/or authority to initiate any proceeding against the appellant/writ petitioner No. 1 in terms of paragraph 9 of the West Bengal Kerosene Control Order since the licence was granted to the appellant/writ petitioner No. 1 for carrying on business as S.K. Oil agent in the district of Burdwan which is outside Calcutta.

47. In the result, the impugned order dated 22nd July, 2013 passed by the Director of Consumer Goods cannot survive and is liable to be set aside since the said Director had no authority and/or jurisdiction to pass any order under paragraph 9 of the West Bengal Kerosene Control Order, 1968 in respect of a S.K. Oil agent of Burdwan. Therefore, the impugned order dated 22nd July, 2013 issued by the Director of Consumer Goods in respect of the appellant/writ petitioner No. 1 is quashed.

48. For the aforementioned reasons, the impugned judgment and order under appeal passed by the learned single Judge also cannot be sustained and the same is accordingly set aside. In the aforesaid circumstances, both the appeal and the connected application stand allowed.

49. In the present case, there will be no order as to costs.

Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.

Samapti Chatterjee, J.

I agree.

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