- (1.) The question involved in this writ petition is as to whether a district controller, who also happens to hold the rank of Joint Director, Food & Supplies could conduct an enquiry over allegations of non-eligibility of an applicant for a license for distributorship under the provisions of the West Bengal/Distribution System (Maintenance and Control) Order, 2003, (2003 Order) at the instance of the Director, District Distribution, Procurement & Supply, in the absence of any disagreement on the part of the Director either with the enquiry report of the sub-divisional controller or recommendation of the district controller. The distributorship involved in this writ petition is for Jamtala Hat under the police station Kultali in the district of 24 parganas (south). Applications in this regard were invited by a notification published in the Kolkata Gazette, Extraordinary dated 21st June, 2011. There has been litigation in the past on appointment to the same distributorship. In an earlier writ petition, (W.P. No. 144 of 2010), Goutam Kumar Saha Vs. The State of West Bengal & Ors. the issue involved was whether advertisements inviting applications for filling up such vacancies were required to be published in the Official Gazette or not. In that proceeding, the petitioner (who is the second petitioner in this writ petition) had complained that there was no Gazette publication and the notice was published in two local newspapers only. An Hon'ble Single Judge of this Court in a judgment delivered on 5th May, 2010, allowed that writ petition holding that notifications in term of Clause 23 of the 2003 Control Order ought to be published in the Official Gazette. Thereafter the aforesaid Gazette publication was made. The writ petitioner No. 1, of which the petitioner No. 2 is a Director, had applied in response to the notice in the prescribed form. Direction for spot enquiry was issued on 5th September, 2011, and the spot enquiry was held on 14th September, 2011, by the sub-divisional controller of the concerned region. The petitioners came to this Court questioning the legal validity of a notice dated 29th December, 2011, and also the report of the District Controller made on 8th February, 2012, in relation to the said enquiry. The notice of 29th December, 2011 was addressed to a learned advocate, Biswanath Charkraborty, and a copy of this letter was marked to the petitioner No. 1. In this notice, originating from the District Controller Food & Supplies, 24 parganas (south) and ex officio Joint Director, it was stipulated:- An enquiry will be conducted from this end on 4th January, 2012 at 11 A.M. in connection with your complaint dt. 15.10.2011 at the proposed godown of M/s. Kultali Food Marketing Pvt. Ltd., one of the applicants in pursuant to the vacancy notification No. WB(Part-I), 2011/SAR-135 dt. 21.06.2011 published in Kolkata Gazette. So you are requested to remain present in the same date & time along with pre-requisite papers.
(2.) When this writ petition was initially moved, said Biswanath Chakraborty was impleaded as a party respondent, along with various functionaries of the Food & Supplies Department of the State Government. It had been argued on behalf of the petitioners at that stage, the identity of the individual whose interest the said learned advocate was representing was not known to the petitioner. Subsequently, such identity was disclosed and the petitioner came to learn that another applicant for the distributorship, Barun Ghosh had made a complaint over eligibility of the petitioner, and on the basis of such complaint the petitioner, and on the basis of such complaint the enquiry was being directed. By an order passed on 5th March, 2012, said Biswanath Charkraborty was struck off from the array of respondents and Barun Ghosh was added as a respondent in this proceeding. Said Barun Ghosh has also participated in the proceeding through his learned advocate.
(3.) Complaint of Barun Ghosh related to allegations deficiency on the part of the petitioner in fulfilling the conditions for appointment. The report of the district controller and Joint Director dated 8th February, 2012 also gives certain conclusions as regards location and size of godown of the writ petitioners, and discloses shortcomings in relation to the land and godown of the petitioners, whereas for Barun Ghosh, his finding is that the same satisfies all the requirements. Learned counsel for the petitioners has assailed the process of enquiry started by the district controller on the ground that such enquiry is contrary to the provisions contained in Clause 23 of the 2003 Order. It has also been submitted on behalf of the petitioners that said Biswanath Chakraborty had joined the legal profession after retiring from the post of an officer of the food and supplies department and he had exerted his influence on the department on behalf of his client to initiate such enquiry. The manner in which an enquiry is to be conducted while considering applications for appointment of a distributor is contained in clause 23 of the 2003 Order, and the said clause stipulates:- Clause 23: Appointment of Distributor- (i) In the event of a vacancy arising out of death or resignation of an existing Distributor or for better functioning of the PDS in a particular area, the vacancy is to be declared with the approval of the Government. The concerned SCFS will report the vacancy to the respective DCFS within 10 days from the date of receipt of vacancy report and the DCFs will transmit the same to Director-DDP & S for necessary action in the matter. The Director-DDP & S after obtaining necessary approval from the Government shall declare such vacancy through public notification/advertisement in the concerned SCFS/DCFS office for new vacancy only. Where vacancy arises due to death incapacitation on medical ground for existing Distributor, such vacancy shall not initially be notified. In such cases, prayer of the legal heirs will be considered with preference on compassionate ground provided required minimum qualifications are fulfilled, if out of several legal heirs, one legal heir is the claimant, he is to submit no objection of other legal heirs along with his prayer. This order will not take effect when both husband & wife possess separate licences and one of them dies, Government is the final authority for such appointment. (ii) The applications having been received from the bonafide citizen of the State for appointment of Distributor against particular vacancy, the SCFS shall enquire within two weeks from the last date of receipt of the applications and the report so prepared shall be sent with his comments to the concerned DCFS. The said DCFS will forward the same with his recommendation to the Director-DDP & S. The Director-DDP & S after obtaining necessary approval from the Government shall arrange or empower any officer for issue of appointment letter together with licence in prescribed Form. (iii) If the Director-DDP & S in any particular case does not agree with the enquiry report of SCFS or recommendations of DCFS, as the case may be, he shall arrange enquiry into the matter by any competent officer or by a team and thereafter shall forward the case with his comments to the Government for necessary approval. The Distributor so appointed shall have to deposit a licence fee of Rs. 500/- and the licence shall remain valid for two years from the date of issue. The licence thereafter shall be required to be renewed every year against a renewal fee of Rs. 200/- subject to satisfactory performance of the licencee. If there is any adverse report against any Distributor, Government will have the full right to terminate such Distributorship. Besides the licence fee, the Distributor shall be required to furnish a security deposit of Rs. 10,000/- at the initial stage in the form of National Savings Certificate, Kishan Vikash Patra etc., pledged in favour of the Governor or West Bengal. (iv) While appointing a Distributor, the concerned authority that is the SCFS/DCFS shall take into consideration the volume of business, number of Dealers to be tagged with the Distributor and other factors as may be required for examination in the interest of PDS. (v) In the event of loss/defacement/damage of the licence so issued to a Distributor, the Distributor may apply for a duplicate licence on deposit of Rs. 1000/- only and Director-DDP & S shall arrange or empower any officer for issue of the duplicate licence after proper enquiry made by the DCFS/SCFS from the date of application.;