- (1.) Assailing the termination order dated 8th October, 2010 passed by the Sub-Divisional Controller, Food & Supplies, Burdwan Sadar, Government of West Bengal the petitioner filed the instant writ petition
(2.) On 25th May, 1987 the petitioner was appointed as M.R. Dealer of Jamar Village, District-Burdwan and since then petitioner has been carrying on the said dealership business strictly in accordance with the terms and conditions of the agreement executed between the petitioner and the Government of West Bengal. Surprisingly on 22nd November, 2004 show-cause notice was issued by the respondent no.3 herein allegedly mentioning that from a report submitted by the inspecting squad on the basis of the surprise visit to the shop of the petitioner on 9th October, 2004 at 11 a.m. certain irregularities were found by the inspector. As a result of which the petitioner was asked to give answer to the show-cause notice within seven days. It is also submitted that no inspection report accompanied the show-cause notice though it is mandatory on the part of the authority to supply the copies of the documents relied on by them to the person against whom show-cause notice was issued. However on 25th November, 2004 the petitioner submitted reply to the show-cause notice although documents were not provided. As per the direction on 21st December, 2004 the petitioner attended the office of the Sub-Divisional Controller on 10.30 a.m.. Unfortunately no hearing took place. Not only that no witness was produced and further the petitioner was not allowed to inspect the alleged report of the inspecting team and he was not even allowed to cross-examined the officer who visited the M.R. shop of the petitioner. Even highlighting such irregularities before the authority the petitioner was served with an order of suspension dated 19th January, 2005 for indefinite period issued by the respondent no.5 herein. Alleging the order of suspension being clear violation of Paragraph 21 of the West Bengal Public Distribution System (Maintenance & Control) order, 2003 the petitioner filed a writ petition being W.P. No.1389 (W) of 2005 challenging the said order of suspension dated 19th January, 2005. Since the said matter was not disposed of, the petitioner filed another writ petition being W.P No.12856 (W) of 2005 praying inter alia for quashing of the show cause proceedings and also for quashing of suspension order dated 19th January, 2005 on the ground inter alia that show cause proceedings was not completed within the period of three months as prescribed under Para 21 of West Bengal Public Distribution System (Maintenance & Control) order 2003. This writ petition was allowed on 2nd August, 2005 by quashing the departmental proceedings drawn against the petitioner on the basis of the show cause notice dated 22nd November, 2004 and also by quashing the suspension order dated 19th January, 2005. Thereafter the petitioner was allowed to resume his M.R. Dealership business with effect from 15th August, 2005. Surprisingly, the then Secretary of the private respondent filed the public interest litigation before this Hon'ble Court though it was withdrawn subsequently as it was observed by the Hon'ble Division Bench that the same is not maintainable. The said person hereinafter filed an appeal against the judgment and order dated 2nd August, 2005 being MAT No.3363 of 2005. The Hon'ble Division Bench on 12th April, 2006 disposed of the said appeal inter alia holding that the period described under Para 21 of the said control order of 2003 is not mandatory so far as disposal of the show cause proceeding is concerned. But it was also held by the Hon'ble Division Bench that period of five months as prescribed in the said control order should be considered as mandatory so far as the continuation of suspension in connection with the show cause proceedings and the suspension of the dealer must come to an end after expiry of three months if in the meantime show cause proceedings is not completed. Accordingly by the said order the authority was directed to complete the entire proceedings as early as possible but definitely by 15th July, 2006. It is submitted that pursuant to the said Division bench order the Sub-Divisional Controller on 30th May, 2006 asked the petitioner to appear before the said authority on 6th June, 2006 for personal hearing in connection with the show cause notice dated 22nd November, 2004, on the said date of hearing the petitioner submitted a written submission ventilating all irregularities committed by the authorities initiating the said show cause proceedings. After the said hearing on 22nd June, 2006 the Sub-Divisional Controller in most clandestine, vindictive and arbitrary manner terminated the dealership of the petitioner. Feeling aggrieved by this said order of termination the petitioner filed a writ petition being W.P. No. 17111 (W) of 2006. The said writ petition was ultimately disposed of by the judgment and order dated 28th July, 2009 thus granting liberty to the Sub Divisional Controller to proceed afresh and directing him to take final decisions in the said proceedings within eight weeks from the date of communication of that order after giving opportunity of hearing to the petitioner. Thereafter the petitioner vide letter dated 11th December, 2009 was asked to appear before him for completing the proceedings. The petitioner then submitted his written representation on 22nd December, 2009 though the petitioner attended the office of the respondent no.5 but no document was made available to the petitioner. No enquiry report was also furnished to the petitioner by the respondent. The petitioner was not allowed to adduce any evidence or cross examine the person who allegedly lodged the complaint and enquiry report and the name of the complainants as well as the enquiry report were also not furnished to the petitioner. Thereafter without considering the petitioner's representation the respondent authority illegally and arbitrarily terminated the petitioner's dealership on 8th January, 2010 knowing fully well that the time framed of eight weeks by this Hon'ble Court was due to expire on 9th January, 2010. Then on 12th May, 2010 the petitioner filed a contempt application before this Hon'ble Court. During pendency of this contempt application surprisingly the Sub-Divisional Controller after lapse of almost six months informed the petitioner on 24th June, 2010 that the order dated 8th January, 2010 is recalled and the authority had decided to proceed afresh. Such being the position, the Hon'ble Court on 17th September 2010 was pleased to drop the contempt proceedings with following observations :- "It is entirely for the petitioner to decide whether he will participate in the proceedings. If he is of the view that the situation has created his right to seek a declaration that the contemnor is not entitled to proceed further, he is free to assert it before the appropriate forum in appropriate manner. But considering his assertion I cannot decide the question whether a declaration should be given that the contemnor has lost authority to proceed with the proceedings." Thereafter on 25th June, 2010 as the Sub-Divisional controller without giving a further notice to the petitioner for hearing and without considering the petitioner'' written submission arbitrarily whimsically clandestinely terminated the petitioner's dealership on 8th October, 2010. Challenging the said illegal termination the petitioner filed the instant writ petition.
(3.) Mr. Sagar Bandyopadhyay, learned Advocate appearing for the petitioner vehemently contended that the impugned letter of termination is bad arbitrary whimsical and very much against the Articles 14, 16, 19 (I) (g) of the Constitution of India.;