Judgment:
In this writ application the petitioner has inter alia challenged an order, bearing memo. no.174/L&L;/DR dated 5th August, 2010, issued by the Director of Rationing, West Bengal, suspending temporarily the license of the petitioner, the owner of a Fair Price Shop in the Dum Dum area in exercise of power under paragraph 26 of the West Bengal Urban Public Distribution System (Maintenance & Control) Order, 2003.
The grounds on which the order of suspension has been issued, have been enumerated in the impugned order. Some of the grounds and in particular, the seventh ground of major discrepancies in stock as entered in the stock register and the stock displayed on the stock board, are undoubtedly serious charges.
The charges have, however, been denied. The Director of Rationing was required under paragraph 26 of the 2003 Order to form the opinion that immediate suspension of the Fair Price Shop was in the interest of the general public. The relevant part of the order of suspension impugned in the instant case is extracted hereinbelow for convenience : * * * * * Further, from the magnitude of the discrepancy in stock of foodgrains as detected in course of the said inspection of the fair price shop from the obstruction as created in carrying out the said inspection in course of the inspection of the said fair price shop and the refusal by the said shop owner to let the said inspecting squad to take custody of the available books of accounts I, Sri Subhash Ranjan Biswas, Director of Rationing, am of the opinion that immediate suspension of the Fair Price shop is necessary in the interest of the general public and therefore, in exercise of the power as conferred upon me in terms of para 26 of the West Bengal Urban Public Distribution System (maintenance & control) order, 2003, I do hereby temporarily suspend the licence of Sri Sankar Lal Sadhukhan, owner of Fair Price Shop no.315, Dum-Dum sub area, Barrackpore sub-control under this directorate, with immediate effect. The magnitude of the alleged discrepancy is not in itself a ground for immediate suspension, without opportunity of hearing.
The allegation has been denied. The suspension of a dealership entails serious civil consequences. Any order that entails serious civil consequences is required to be passed in compliance with the principles of natural justice, after giving the concerned dealer opportunity of representation. Unlike suspension of employees, who might be reinstated with full back wages, if exonerated, the prejudice to a dealer suspended unjustly can be irreparable. There is not a whisper in the impugned order as to what prompted immediate suspension without any opportunity of hearing. A prior hearing is an essential ingredient of natural justice and can only be dispensed with in cases of exceptional urgency.
In the petition there is a categorical averment on oath that stocks of ration commodities had not physically been measured. The seizure was admittedly not as per the procedure prescribed by Section 100 of the Criminal Procedure Code in that there were no independent witnesses. Mr. Saha Roy, learned Advocate appearing on behalf of the petitioner, has referred to an unreported Judgement and order dated 29th April, 2010of a learned Single Judge of this Court in W.P. No.1299 of 2009 (Arun Agarwal vs. State of West Bengal & Ors.) where this Court, referring to earlier judgement of this Court, held as follows :
33.From the aforementioned judgements and read with the observations made by this Court above, this Court considers that the very purpose to insert para 25(2) was to ensure reasonableness and non-arbitrariness during the course of search and seizure and therefore, it is a provision that is beneficent not only to the State but also to the person who is being searched as it seeks to enforce the provisions of Article 14 of the Constitution of India rendering an arbitrary action illegal. In the background of Article 14 of the Constitution of India, read with the observations made by the Division Bench and also by the Supreme Court in the case of Ram Deen Maura (DR.) referred to above this Court comes into conclusion that so far as the provisions of Para 25(2) of West Bengal Urban Public Distribution System (Maintenance and Control) Order 2003 is concerned, the same is mandatory and it must be strictly observed. 34. Having so held, the other quest8ion that has to be taken into consideration is as to whether the search and seizure conducted in the instant case was arbitrary or was it free from arbitrariness As observed above, two factors weighed with the respondents for formation of the opinion that immediate suspension was necessary, the alleged obstruction to carry out inspection and the refusal of the shop owner to allow the inspecting squad to take custody of available books of accounts. In the impugned memo. it is alleged that midway through the inspection a crowd of 35 persons streamed into the fair price shop and created obstruction to the inspection.
After their arrival, the fair price shop owner started non-cooperation with the inspecting squad, impeding further inspection. The inspection was admittedly a surprise inspection. If the petitioner was present at the time of inspection, it is not understood how the petitioner could have gathered the crowd of 35 persons to the fair price shop to cause obstruction. It is not even the allegation that the 35 persons came at the instance of the petitioner. The issues raised in the writ application need to be decided on affidavits.
However, prima facie it appears that there was no other reason for issuance of the immediate order of suspension, on the basis of seizure which is prima facie not in accordance with law, and that too without opportunity to the petitioner, except the disclosed reason of magnitude of the alleged discrepancy in stock, No cogent reason has been disclosed for immediate suspension without prior opportunity of hearing.
The submission of Mr. Deb that departmental officials could sign as witnesses for compliance of Section 100 of the Criminal Procedure Code, 1978 is prima facie unacceptable in view of the judgement of the Single Bench in Arun Agarwal (supra).. The impugned order which entails serious civil consequences, as observed hereinabove, is prima facie in contravention of principles of natural justice.
There will be an interim order restraining the respondents from giving effect and/or further effect to the impugned order of suspension till 16th September, 2010 or until further orders whichever is earlier.It is made clear that this Court has only stayed the suspension and not the disciplinary proceedings. Disciplinary proceedings might continue in accordance with law.
Affidavit in opposition be filed within 2nd September, 2010. Affidavit in reply thereto, if any, be filed within 9th September, 2010. The matter be listed as For Orders on 10th September, 2010.
Urgent certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.