Judgment & Order (Cav)

1. Heard Mr. K. K. Mahanta, learned Senior Counsel, assisted by Ms. N. Begum, learned counsel for the petitioner. Also heard Mr. B. J. Talukdar, learned Senior Counsel and Addl. Sr, Govt. Advocate, assisted by Mr. P. K. Medhi, learned counsel for the respondents.

2. The challenge made in the present writ petition is to the order dated 26.06.2023 passed by the Deputy Commissioner, Dibrugarh, by which, Food Grains/Rice Transportation Agreement dated 09.02.2018 is terminated and the security deposit furnished by the petitioner in respect of the transport contract is forfeited for alleged commission of malpractices and for breach of the terms of the transport contract agreement.

3. The petitioner is a registered Co-operative Society under the Assam Cooperative Society Act, 1949, having its office at Lepetkatta, near Ashapur Notun Gaon in the District of Dibrugarh Assam, and is engaged in the business of transportation of goods.

4. The case in brief is that the petitioner was selected as Transporter vide order dated 10.01.2018 pursuant to the NIT dated 18.02.2016 for handling and transportation of rice under the National Food Security Act, 2013 (hereinafter referred to as NFSA, 2013 in short) within the Dibrugarh District. An agreement dated 09.02.2018 was entered into between the Deputy Commissioner, Dibrugarh and the petitioner for transportation of allotted food grains under NFSA, 2013. As per the agreement, the petitioner was required to transport food grains in two TIERS. In TIER-I: from FSD of FCI, Dibrugarh (Goushala and Chawalkhowa FSDs) to the godowns of Gaon Panchayat Samabai Samittees (in short GPSS) under Barbaruah and Joypur Development Blocks; and in TIER-II: from GPSS godowns to the doorstep of Fair Price Shops located within the GPSS areas under Barbaruah and Joypur Development Blocks. Although the agreement was valid up to 31.03.2018, the petitioner was allowed to continue the transportation under the same terms and conditions.

5. It is the contention of the petitioner that for lifting of food grains in TIER-I, the Secretary or any other authorized person of the Society/firm is required to endorse their Lifting Book in the Office of the Deputy Commissioner and accordingly, the Secretary of the petitioner society used to endorse their Lifting Book in the Office of the Deputy Commissioner, Dibrugarh, after which release orders in respect of the food grains are issued by the Food Corporation of India (FCI). For TIER-II, the food grains are to be transported from WCCS/GPSS godowns to the doorstep of Fair Price Shops and it is the responsibility of the Secretary or Chairman of the GPSS to issue memos to the Fair Price Shops under their jurisdiction, to give demand to the transporter for placing the required vehicles for transportation of the food grains to the Fair Price Shops and to hand over a copy of the same to the transporter for doorstep delivery.

6. It is contended that the Secretary of the petitioner society endorsed their Lifting Book for the quota of TPDS rice for the months of May 2023 and June 2023. After issuance of the release orders to the FCI Depot, Dibrugarh, the Secretary of M/s Namrup GPSS Ltd. called the petitioner each time to the depot for transportation of the rice of TIER-I from the depot to their godown. The Secretary had acknowledged the receipt of all the rice quota for the months of May and June 2023 and road challans were also issued by the petitioner society for transportation. The petitioner, in the months of March and April 2023, in TIER-I, transported the allotted rice from FCI depot to the godown of M/s Namrup GPSS, which was duly received and acknowledged by the Secretary.

7. It is the contention of the petitioner that after the completion of TIER-I transportation, the Secretary/Chairman of M/s Namrup GPSS Ltd. ought to have called for doorstep transportation in TIER-II. However, there was no information from the part of M/s Namrup GPSS Ltd. for transportation in TIER-II. In the meantime, the petitioner came to know that officials of M/s Namrup GPSS diverted and substituted around 1500 quintals of rice out of a total of 2164.30 quintals of TPDS for the May and June 2023 quota rice transported by the petitioner, to the open market for their personal gain. Accordingly, an enquiry was conducted by the Department which also shows the involvement of the petitioner. Thereafter, an FIR was lodged and a case was registered being Namrup P.S. Case No. 38/2023 under Sections 120(B)/306/409/420/380/34 IPC read with Section 7 of the EC Act. One Shri Prabal Borgohain , the Secretary of M/s Namrup GPSS Ltd., was arrested.

8. It is further contended that the petitioner came to know that without contacting the petitioner firm and issuing memos for TIER-II transportation, the officials of M/s Namrup GPSS Ltd. had personally transported a part of the May and June 2023 rice quota for doorstep delivery in TIER-II from the godown of the Samahai Samiti to Fair Price Shops and without informing the petitioner had personally delivered to the open market.

9. After the preliminary inquiry and the registration of the criminal case against the officials of M/s Namrup GPSS Ltd. and the petitioner, a Show Cause Notice was issued to the petitioner by the Deputy Commissioner, Dibrugarh, on 21.05.2023 whereby the petitioner was directed to show cause as to why his transport contract should not be terminated for involvement in malpractice in transporting the food grains and in violation of the terms of the contract agreement. The petitioner submitted his reply on 29.05.2023 in detail, inter alia, clarifying that M/s Namrup GPSS Ltd. had not issued any memos for distribution of the rice in TIER-II. Therefore, the petitioner could not transport the food grains from the GPSS to the doorstep of the Fair Price Shops for delivery to the beneficiaries.

10. After personal hearing and consideration of the matter, the Deputy Commissioner, Dibrugarh, has come to a conclusion, inter alia, that Shri Gakul Das, the Secretary of M/s Larua Samabai GPSS Ltd. i.e. the petitioner, has failed to substantiate the charges regarding their involvement in the diversion of government highly subsidized NFSA 2013 rice in league with the office bearers of M/s Namrup GPSS Ltd. The petitioner society has failed to submit the delivery receipts from the Fair Price Shop dealers regarding successful delivery of transported food grains duly signed by the recipients and counter-signed by the Secretary of M/s Namrup GPSS Ltd. as per the clauses of the Transport Agreement. It also came to a finding that the petitioner society has violated the terms of the contract agreement, particularly Clauses 6, 7 and 10 therein. It further concluded that M/s Namrup GPSS Ltd. has not distributed TPDS rice to the Fair Price Shop dealers for onward distribution to the beneficiaries within the stipulated time frame and the quota for May and June 2023, and the whole allotted quantity is believed to have been diverted into the open market by the transporter M/s Larua GPSS Ltd. i.e. the petitioner, in league with the office bearers of M/s Namrup GPSS Ltd., to garner undue illegal profit. Consequently, the Transport Agreement dated 09.02.2018 entered with the petitioner has been terminated and the security deposit in respect of the transport contract is forfeited. Hence, this writ petition.

11. Mr. K. K. Mahanta, learned Sr. Counsel for the petitioner, submits that the petitioner firm is not at all involved in any kind of malpractices in relation to the diversion and substitution of TPDS rice by the officials of M/s Namrup GPSS Ltd. as the petitioner was not issued any memos to complete the TIER-II transportation by M/s Namrup GPSS Ltd. after completion of TIER-I. He submits that, in terms of the agreement, although the petitioner firm is responsible for transportation of food grains in two TIERS, responsibility for TIER-II arises only after entrusting the transportation to the petitioner and not otherwise. The petitioner has successfully completed TIER-I but was never entrusted by issuance of a memos to transport under TIER-II. He submits that there is no material to indict the petitioner except an allegation that the TPDS rice quota for May and June 2023 has been diverted by M/s Namrup GPSS Ltd. in league with the office bearers of the petitioner society, which only cast doubt against the then Secretary of the petitioner society. Since the allegation relates to TIER-II transportation, after the completion of TIER-I, where no memos were issued for transportation by the concerned officials or office bearers of M/s Namrup GPSS Ltd. for TIER-II, the petitioner is not at all liable for any malpractices. Therefore, the impugned order dated 26.06.2023 is liable to be set aside and quashed.

12. In support of his submissions, Mr. K. K. Mahanta, learned Sr. Counsel, has placed reliance on the judgment and order dated 26.09.2023, in the case of M/s Naba Gogoi vs State of Assam and 3 Ors. in WP(C) No. 4031/2023 to project that in a similar case this court has allowed the writ petition and set aside the order of termination of contract and forfeiture of security deposit passed by same authority under similar circumstances.

13. On the other hand, Mr. B. J. Talukdar, learned Senior Counsel for the respondents, submits that the matter was enquired into by an Inspector, FCS & CA, Dibrugarh regarding malpractice and diversion of TPDS articles by M/s Namrup GPSS Ltd. It is revealed that the diversion of rice was committed in complicity with the transporter, M/s Larua GPSS Ltd., petitioner herein. On 18.05.2023, the Inspector, FCA & CA, submitted a detailed enquiry report to Respondent No. 4. As per the report, a substantial quantity of PMGKAY rice was diverted by the Secretary and other office bearers of M/s Namrup GPSS Ltd. in league with the transporter M/s Larua GPSS Ltd, Sri Gakul Das , and others. The enquiry further revealed that M/s Namrup GPSS Ltd. failed to issue rice to 15 Fair Price Shop dealers for the month of May 2023, amounting to 459.15 quintals, and 1082.50 quintals for the month of June 2023, totaling 1541.65 quintals. This diversion and embezzlement deprived 9,643 families, comprising a population of 25,952, of their NFSA entitlement. The report also stated that the Secretary, Sri Prabal Borgohain , admitted in writing that PMGKAY rice was sold to Sri Moni Shah alias Shree Ram Shah , who was acting on behalf of the transporter, M/s Larua GPSS Ltd, i.e., the petitioner herein.

14. Mr. Talukdar, learned Senior Counsel, further submits that, as per the preliminary enquiry report dated 18.05.2023, the Secretary of M/s Namrup GPSS Ltd. admitted that the June quota of PMGKAY rice was diverted and sold in the open market in complicity with the authorized transporter, M/s Larua GPSS Ltd., represented by its employee, Moni Shah. He had also declared that similar diversion of TPDS rice had been carried out earlier by the former Secretary of M/s Namrup GPSS Ltd. in association with the transporter, M/s Larua GPSS Ltd. From the enquiry, it is evident that the petitioner society was involved in the embezzlement and diversion of rice.

15. Mr. Talukdar, learned Senior Counsel, submits that there are sufficient grounds to proceed against the petitioner. The enquiry report, along with the confessional statement of the Secretary of M/s Namrup GPSS Ltd. and the statements of the agents, clearly establishes that the petitioner was directly involved in the matter. Once the petitioner is implicated, there is no question of issuing any requisition to complete TIER-II and the petitioner is a named accused in the pending criminal case. The petitioner, along with the Secretary of M/s Namrup GPSS Ltd., was found involved in the diversion of PDS rice, which constitutes a violation of Clause 3 of the Transport Agreement dated 09.02.2018 as Clause 3 specifically provides that in the event of any breach of its terms, the security deposit shall forthwith become liable to forfeiture. Further, Clause 10 of the Agreement stipulates that the transporter shall be responsible for any loss, damage, leakage, theft, or replacement with inferior quality of the transported food grains and shall be required to compensate for any such irregularities, in addition to being liable for prosecution under the relevant provisions of law.

16. Mr. Talukdar, learned Senior Counsel, further submits that under the Contract Agreement, the petitioner was responsible for ensuring that the transportation of goods was completed in a time-bound manner, not only at the TIER-I level but also at the TIER-II level. Even assuming that the petitioner did not receive the memos from M/s Namrup GPSS Ltd. for carrying out the TIER-II transportation within the stipulated time, it was nonetheless incumbent upon the petitioner to raise the issue and lodge a complaint with the competent authority, which the petitioner failed to do. Consequently, the complicity of the petitioner in the diversion of food grains cannot be ruled out and on the contrary, indicates clear involvement the petitioner society in the diversion. Therefore, he submits that no case is made out for interference and as such the writ petition is liable to be dismissed.

17. Having regard to the judgment and order relied upon by Mr. Mahanta, learned Senior Counsel for the petitioner, Mr. B. J. Talukdar, learned Senior Counsel, submits that in the said case there was no material against the petitioner and the petitioner was not named in the FIR and also no enquiry was conducted against the petitioner. In the present case, however, the preliminary enquiry conducted by the authority clearly establishes the involvement of the petitioner, who is also a named accused in Namrup P.S. Case No. 38/2023. Therefore, he submits that above case relied upon is clearly distinguishable from the present case.

18. I have considered the submissions advanced by the learned Senior Counsels for the parties and also perused the materials available on record.

19. The petitioner was selected as Transporter vide order dated 10.01.2018 pursuant to the NIT dated 18.02.2016 for handling and transportation of rice under the NFSA, 2013 for Dibrugarh District. An agreement dated 09.02.2018 was entered into between the Deputy Commissioner, Dibrugarh and the petitioner for transportation of allotted food grains. As per the agreement, the petitioner was required to transport food grains in two TIERS- TIER-I: from FSD of FCI, Dibrugarh (Goushala and Chawalkhowa FSDs) to the godowns of Gaon Panchayat Samabai Samittees (in short GPSS) under Barbaruah and Joypur Development Blocks; and in TIER-II: from GPSS godowns to the doorstep of Fair Price Shops located within the GPSS areas under Barbaruah and Joypur Development Blocks. Although the agreement was valid up to 31.03.2018, the petitioner was allowed to continue transportation under the same terms and conditions.

20. Admittedly, the petitioner carried out the transportation of the rice in TIERI but has failed to carry out the transportation in TIER-II. In the meantime malpractices of illegal diversion of food grains/rice were detected that 1500 quintals of rice out of a total of 2164.30 quintals for the May and June 2023 quota rice transported by the petitioner were diverted and substituted to the open market. An enquiry was conducted by the Department which shows the involvement of the petitioner and M/s Namrup GPSS Ltd. Accordingly, a case has been registered being Namrup P.S. Case No. 38/2023 under Sections 120(B)/306/409/420/380/34 IPC read with Section 7 of the EC Act. One Shri Prabal Borgohain , the Secretary of M/s Namrup GPSS, was arrested.

21. Having found involved in commission of malpractices by the petitioner as they have failed to show any materials of non-involvement in the diversion of government highly subsidized rice in league with the office bearers of M/s Namrup GPSS Ltd and failed to submit the delivery receipts from the Fair Price Shop dealers regarding successful delivery of transported food grains as per the terms of the Transport Agreement and the petitioner society having found to have violated the terms of the contract agreement as well as not distributed TPDS rice to the Fair Price Shop dealers for onward distribution to the beneficiaries within the stipulated time frame and the whole allotted quota for May and June 2023 is believed to have been diverted into the open market by the petitioner in league with the office bearers of M/s Namrup GPSS Ltd, to obtain undue illegal profit, the Deputy Commissioner terminated the Transport Agreement dated 09.02.2018 and forfeited the security deposit in respect of the transport contract.

22. To appreciate, it is apposite to consider the transport agreement dated 09.02.2018. The relevant clauses of the Transport Agreement is reproduced herein under:

                   “2. Whereas the transporter M/S Laruah GPSS shall perform the transportation work of food-grains in two tiers:

                   TIER-I from FSD of FCI Dibrugarh (Goushala, Chawalkhowa FSDs to the gordowns of GPSS under Barbaruah Development Block and Joypur Development Block.

                   TIER-II from GPSS godowns to the door-step of F P. Shops located within the GPSS areas under Barbaruah Development Block Joypur Development Block.

                   3. The Transporter M/S Laruah GPSS shall keep with the Deputy Commissioner. Dibrugarh a sum of Rs 10,00,000.00 (Rupees Ten Lakh) only as interest free security deposit. The Security deposit shall be retained by the Deputy Commissioner as security for the performance of the agreement on the part of the contractor. On any breach of terms of this agreement the security deposit shall forthwith become liable to be forfeited. The security deposit shall unless forfeited be liable to meet any damage loss or avoidable expenditure caused to authority by any act of the transporter.

                   6. The transport contractor shall deliver the allotted food-grains transported by them to the nominee GPSS and WCCS (in TIER-I) and to the FP Shop dealers (in TIER-II) properly without any loss, damage, shortage etc of its quality and quantity.

                   7. The transporter shall obtain a receipt from the allottee GPSS/WCCS and Fair Price shops after successful delivery of transported food-grains duly signed by the recipient and countersigned by executive officer/ Secretary of the concerned GPSS/CCS.

                   8. No extra amount shall be paid by the authority in case of any delay at FSDs of FCI while loading and at WCCS/GPSS and F.P. Shop level at the time of unloading. However, the District authority shall ensure for timely loading and unloading of foodgrains transported by the contractor.

                   9. The transporter shall adhere to the lifting programme of food-grains provided to them by the authority / FCI and shall be bound to complete delivery of allotted food-grains to the nominees in time and within validity period.

                   10. The transporter shall be responsible for any loss, damage, leakage, theft, replacement with inferior quality of the transported food-grains and shall have to compensate for any such irregularities besides, liable to face prosecution as per provisions of law.”

23. Perusal of the terms of the agreement shows that the transporter/petitioner shall perform the transportation work of food-grains in two TIERs: In TIER-I from FSD of FCI Dibrugarh (Goushala, Chawalkhowa FSDs to the gordowns of GPSS under Barbaruah and Joypur Development Blocks. In TIER-II from GPSS godowns to the doorstep of Fair Price Shops located within the GPSS areas. The Transporter/petitioner is required to deposit a sum of Rs 10,00,000.00 (Rupees Ten Lakh) only as interest free security deposit for the performance of the agreement on the part of the transporter. On breach of any terms of the agreement, the security deposit shall be liable to be forfeited. The security deposit, unless forfeited, shall be liable to be adjusted towards any damage, loss, or avoidable expenditure caused to the authority by any act of the transporter.

24. It shows that the transport contractor/petitioner shall deliver the allotted food-grains transported by them to the nominee GPSS and WCCS (in TIER-I) and to the Fair Price Shop dealers (in TIER-II) properly without any loss, damage, shortage etc. of its quality and quantity. The transporter shall obtain a receipt from the allottee GPSS/WCCS and Fair Price shops after successful delivery of transported food-grains duly signed by the recipient and countersigned by Executive Officer/Secretary of the concerned GPSS/WCCS. The transporter shall adhere to the lifting programme of food-grains provided to them by the authority/FCI and shall be bound to complete delivery of allotted food-grains to the nominees in time and within validity period.

25. It further stipulates that the District authority shall ensure for timely loading and unloading of foodgrains transported by the contractor. The transporter shall be responsible for any loss, damage, leakage, theft, replacement with inferior quality of the transported food-grains and shall have to compensate for any such irregularities besides, liable to face prosecution as per provisions of law. Thus, the responsibility is fixed on the transporter/petitioner for any loss, damage, leakage, theft, replacement with inferior quality of the transported food-grains and at the same time the District authority to ensure for timely loading and unloading of foodgrains transported by the contractor.

26. The Deputy Commissioner, Dibrugarh, has considered the matter and come to a conclusion that M/s Namrup GPSS Ltd in league with the petitioner has committed malpractices in illegally diverting and substituting the rice quota meant for beneficiaries to open market. The relevant paragraphs of the impugned order dated 26.06.2023 are reproduced herein below:

                   “During personal hearing undertaken on 22/06/2023, Sri Gakul Das, Secretary of M/S Laruah GPSS Ltd. had failed to substantiate the charges about their involvement in diversion of Govt. highly subsidized NFSA, 2013 rice in league with the office bearers of M/S Namrup GPSS Ltd.. The Transporter also failed to submit the delivery receipt from the FPS dealers regarding successful delivery of transported food grains duly signed by the recipients and counter signature of the Secretary of M/S Namrup GPSS Ltd, as per the point No. 7 of Transport Agreement. While the Transporter was questioned about effecting Tier-i delivery of June, 2023 quota without completion of Tier-II delivery against May, 2023 quota which attracts violation of point No.7 of Transport Agreement and about non providing any information to the FCS&CA Branch or district authority regarding noncompletion of May,2023 quota in Tier-II, no explanation could be provided by the NFSA Transporter. On the other hand, in notarized undertaking No. 14007 dated 19/06/2023 submitted by Sri Gakul Das, Secretary of M/S Laruah GPSS Ltd. (NFSA Contractor) submitted during the personal hearing, he in writings accepted that they are duty bound to shoulder the liability and responsibility of the alleged diverted rice subject to outcome of Namrup PS case No. 38/2023 u/s 120(B)/406/420/380/34 IPC R/W Sec. 7 of E.C Act, 1955.

                   Further, it transpires from records that as per the provisions of point SL. No. 6 of Tender Agreement dated 09/02/2018 executed between the Transport Contractor and District Administration "the Transport contractor shall deliver the allotted food grains transported by them to the nominee GPSS and WCCS (in TIER-I) and to the FP Shop dealers (in TIER-II) properly without any loss, damage, shortage etc. of its quality and quantity."

                   On the other hand, as per the provisions of point SL. No. 10 of the Tender Agreement-"the Transporter shall be responsible for any loss, damage, leakage, theft, replacement with inferior quality of the transported food grains and shall have to compensate for any such irregularities besides liable to face prosecution as per provisions of law."

                   Whereas M/S Namrup GPSS has not distributed TPDS Rice to the FPS dealers for onward distribution to the beneficiaries within the Govt. stipulated time frame (i.e 15/05/2023 for May, 2023 quota) and June, 2023 quota till 15/05/2023 (i.e date of enquiry), a part of May,2023 quota and the whole allotted quantity for June, 2023 quota is believed to be diverted into open market by the Transporter M/S Laruah GPSS Ltd. in league with the office bearers of M/S Namrup GPSS to gamer undue illegal profit.

                   It is agreed by the transporter that being the Transporter for M/S Namrup GPSS, they are responsible for delivering the food grains to the GPSS as well as in the doorstep of FPS dealers under the GPSS. Transporter M/S Laruah GPSS Ltd. is found to have lifted and transported the allotted 1081.80 qtls of Rice for May, 2023 during the period 18/03/2023 to 23/03/2023 from FCI Choulkhowa FSD and for the month of June, 2023, a quantity of 1082.50 qtls. of Rice was lifted and transported during the period 06/04/2023 to 25/04/2023 from FCI, Goshala FSD. The non-distribution of the said allotted and lifted quantity to the concerned FPS dealers for onward distribution to the deserving poor NFSA beneficiaries within the Govt. stipulated time, it, is established that the Transporter and the officer bearer of M/S Namrup GPSS has co-jointly diverted the TPDS Rice under NFSA,2013 for illegal personal gain detrimental to the interest of poor NFSA, 2013 beneficiaries.

                   Under the above facts and circumstances, I believe punitive action must be undertaken against the delinquent NFSA Transporter M/S Laruah GPSS Ltd. for breach of trust violating the provisions of Transport Agreement point SL. No. 6,7 & 10. Therefore, I Sri Biswajit Pegu, IAS, Deputy Commissioner, Dibrugarh do hereby order for the following punitive action against the NFSA Transport Contractor M/S Laruah GPSS Ltd.

                   1. The NFSA Transport Agreement dated 09/02/2018 made with Transporter M/S Laruah GPSS Ltd. is hereby terminated forthwith.

                   2. The Security deposit Rs. 10,00,000.00 (Rupees Ten Lakh) placed before the Deputy Commissioner, Dibrugarh by Transporter M/S Laruah GPSS Ltd. in respect of the Transport Contract is hereby forfeited into the exchequer of Govt. of Assam for the breach of terms of the transport contract agreement and to meet the partial value of alleged diverted rice.

                   3. The share of value of diverted rice co-jointly with the Secretary and Office bearers of M/S Namrup GPSS Ltd. will be realized in due course as per the outcome of Judicial Court order in respect of Namrup PS case No. 38/2023 u/s 120(B)/406/420/380/34 IPC R/W Sec. 7 of E.C Act, 1955.”

27. From a perusal of the impugned order, it is seen that the Deputy Commissioner, Dibrugarh, has, inter alia, found and observed that the petitioner was in league with the Secretary and the Chairman of M/S Namrup GPSS Ltd. in committing diversion of rice quantity. Being the Transporter for M/s Namrup GPSS Ltd., they are responsible for delivering the food grains to the GPSS as well as in the doorstep of Fair Price Shop dealers under the GPSS. The petitioner is found to have lifted and transported the allotted 1081.80 quintals of Rice for May, 2023 during the period 18.03.2023 to 23.03.2023 from FCI Choulkhowa FSD and for the month of June, 2023, a quantity of 1082.50 quintals of Rice was lifted and transported during the period 06.04.2023 to 25.04.2023 from FCI, Goshala FSD. They have failed to transport the said allotted and lifted quantity to the concerned FPS dealers for onward distribution to the deserving poor NFSA beneficiaries within the Govt. stipulated time. It is established that the petitioner and the office bearer of M/S Namrup GPSS have diverted the TPDS Rice for illegal personal gain detrimental to the interest of poor beneficiaries. However, upon careful consideration, the impugned order does not record any finding of fact based on materials to arrive at such a conclusion which does not establish the direct involvement of the petitioner. It appears that the findings and conclusion drawn by the Deputy Commissioner as regards the alleged complicity of the petitioner in diversion of rice appears to be on mere suspicion as the petitioner failed to transport the rice in TIER-II, and purely based on the circumstances which were also not clearly established.

28. The respondent authority has relied upon Clauses-6, 7 and 10 of the Transport Cjontract for breach of trust violating the terms of contract to terminate the contract agreement. There is no dispute that the petitioner has not transported the rice in TIER-II. The responsibility to ensure timely loading and unloading of foodgrains by the transporter was on the District authority, however, there is nothing on record to show that the District authority had acted to ensure timely transportation in TIER-II. As noted herein above, the terms of the contract agreement would clearly show that the responsibility to ensure timely loading and unloading of foodgrains by the transporter was on the District authority. It demonstrates that the responsibility of the transporter was only to adhere to the lifting programme of foodgrains provided to him by the authority/FCI. The transporter would be bound to complete the transportation of foodgrains within time. The lifting of foodgrains and the delivery of the same were, however, to be carried out under the supervision of the District authority.

29. It is to be observed that the terms of the agreement governs duties and liabilities of the petitioner in the matter of transportation of the foodgrains and issues arising during transit and not beyond that. Thus, as per the terms of the contract agreement the petitioner would not have any liability in respect of the foodgrains while the same is stored in the godowns of the GPSS. It is seen that the petitioner could not transport the foodgrains in TIER-II level unless memos for lifting of foodgrains are issued by the concerned GPSS.

30. As placed and relied upon by the learned Senior Counsel for petitioner, this Court in the case of M/s Naba Gogoi (Supra), in a similar case having pari materia contract agreement and impugned order by the same Deputy Commissioner, Dibrugarh, has held which is reproduced herein under:

                   “…10. From a careful reading of the impugned order (Annexure-10) I find that the respondent No.3 has observed that the writ petitioner was in league with the Secretary and the Chairman of M/S Rohmaria GP SS Ltd. for diversion of rice quantity. However, the impugned order (Annexure-10) does not record any finding of fact based on cogent materials available on record so as to arrive at such a conclusion. Rather, it appears that the conclusion drawn by the respondent No.3 as regards the alleged complicity of the petitioner in diversion of rice is on mere suspicion and presumption, based on the circumstances which were also not clearly established in the impugned order. Since the respondent No.3 has relied upon Clauses-6 and 10 of the contract so as to terminate the contract agreement, it would be necessary to reproduce the relevant clauses of the contract agreement. As such, Clause Nos.6 to 10 of the contract agreement is reproduced herein below for ready reference :-

                   “6. The transport contractor shall deliver the allotted foodgrains transported by them to the nominee GPS and WCCS (in TIER-I) and to the FP Shop dealers (in TIER-II) properly without any loss, damage, storage etc. of its quality and quantity.

                   7. The transporter shall obtain a receipt from the allottee GPSS/WCCS and Fair Price shops after successful delivery of transported food-grains duly signed by the recipient and countersigned by executive officer/Secretary of the concerned GPSS/WCCS.

                   8. No extra amount shall be paid by the authority in case of any delay at FSDs of FCI while loading and at WCCS/GPSS and F.P. Shop level at the time of unloading. However, the District authority shall ensure for timely loading and unloading of foodgrains transported by the contractor.

                   9. The transporter shall adhere to the lifting programme of foodgrains provided to them by the authority/FCI and shall be bound to complete delivery of allotted foodgrains to the nominees in time and within validity period.

                   10. The transporter shall be responsible for any loss, damage, leakage, theft, replacement with inferior quality of the transported foodgrains and shall have to compensate for any such irregularities besides, liable to face prosecution as per provisions of law.”

                   11. A plain reading of the aforementioned clauses of the contract agreement, more particularly Clause-8 would clearly go to show that the responsibility to ensure timely loading and unloading of foodgrains by the transporter (contractor) was on the District authority. The aforesaid clause of the contract agreement, when read in the context of other clauses, would clearly demonstrate that the responsibility of the contractor (transporter) was only to adhere to the lifting programme of foodgrains provided to him by the authority/FCI. The contractor would be bound to complete the transportation of loaded foodgrains within time. The lifting of foodgrains and the delivery of the same were, however, to be carried out under the supervision of the District authorities. In other words, the terms of the agreement governs duties and liabilities of the transporter in the matter of transportation of the foodgrains and issues arising during transit and not beyond that. Under the terms of the contract agreement the transporter would not have any liability in respect of the foodgrains while the same is stored in the godowns of the WCCS/GPSS. Moreover, the contractor could also not lift the foodgrains at Tier-I or Tier-II level unless instructions for lifting of foodgrains and the delivery address was given to it/him by the concerned WCCS/GPSS.

                   12. In the present case, materials on record indicate that diversion of foodgrains by the mechanism, as projected by the learned Government Advocate, Assam, was detected while the foodgrains were stored in the godown of M/S Rohmaria GP SS Ltd. The contractor/transporter does not have any access to the goods stored in the godown of the S. S. Limited during the period during which the goods are stored in the godown. The responsibility for storage of such good would lie on the concerned WCCS/GPSS and on the authorities/In-Charge Inspectors, under whose supervisions, are located. There is no allegation against the writ petitioner to the effect that he had a direct role to play in the diversion of the rice bags. There is also nothing on record to show even the indirect involvement of the writ petitioner in diversion of bags.

                   13. Clause-10 of the contract agreement no doubt makes the transporter responsible for any loss, damage, leakage, theft, replacement with inferior quality of the transported foodgrains but as has been indicated above, the said clause would be applicable only if there are materials to suggest that the loss, damage, leakage, theft and/or replacement had taken place while the foodgrains were in transit and in the custody of the transporter and not otherwise. In other words, the transporter cannot be made responsible for any loss or damage under Clause-10 while the foodgrains were in the custody of the GPSS/WCCS unless there are specific materials to indicate the complicity of the transporter in any malpractices. After a careful analysis of the documents on record, I find that there is no material to arrive at a conclusion as regards the complicity of the petitioner in diversion, theft and/or replacement by inferior foodgrains while the foodgrains were in transit. Under the circumstances, this Court is of the unhesitant opinion that the present is not a case where Clauses-6 and 10 would have any application in the facts and circumstances of the case.

                   14. The respondent No.3 has issued the impugned order, the operative part of which reads as follows:-

                   “1. The NFSA Transport Agreement dated 09.02.2018 made with Transporter M/S Naba Gogoi is hereby terminated forthwith.

                   2. The Security deposit of Rs.10,00,000.00 (Rupees Ten Lakh) placed before the Deputy Commissioner, Dibrugarh by Transporter M/S Naba Gogoi in respect of the Transport Contract is hereby forfeited into the exchequer of Govt. of Assam for the breach of terms of the transport contract agreement and to meet the partial value of alleged diverted rice.

                   3. The share of value of diverted rice co-jointly with the Chairman and Secretary of M/S Rohmaria Samabai Samitee Ltd. will be realized in due course as per the outcome of Judicial Court order in respect of Rohmaria PS Case No.11/2023 u/s 120(B)/406/409/420 R/W Sec. 7 of E.C. Act, 1955.

                   Given under my seal and hand on this ………..day of June, 2023 and this order will come into force with immediate effect.”

                   15. If the impugned order is implemented, the same would not only have serious adverse civil consequences upon the petitioner but he may even be subjected to future proceedings involving penal provisions. Therefore, unless the conclusions are drawn on the basis of cogent materials available on record and the charge is established in a proceeding conducted in accordance with law, an order, having serious adverse civil consequences upon the petitioner, cannot be sustained in the eye of law.

                   16. As noted above, there is not even an iota of evidence on record to suggest that the writ petitioner had acted in violation of the terms and conditions of the contract. The writ petitioner is also not named in the F.I.R. As such, having regard to the facts and circumstances of the case, this Court is of the opinion that there is no cogent basis for the respondent No.3 to issue the impugned order against the writ petitioner.”

31. On the perusal of the above case, it is seen that the contract agreement and impugned order in that case are pari materia with the present case and the authority is also same except that in that case the petitioner was not named in the FIR, by itself, which in my view would not be distinguishable from the present case. Thus, there is no option other than to interfere with the impugned order dated 26.06.2023.

32. In view of what has been discussed herein above and having considered that this Court in the case of M/s Naba Gogoi (Supra), in a similar case having pari materia contract agreement and impugned order passed by the same Deputy Commissioner, Dibrugarh, as well as taking into consideration of judicial disciple and propriety, this Court would not have other view than to allow this writ petition. Accordingly, same is allowed. Consequently, the impugned order dated 26.06.2023 passed by the Deputy Commissioner, Dibrugarh is here by set aside and quashed. It is, however, made clear that this order shall not preclude the authorities from initiating further legal action against the petitioner, if found guilty of any foul play or commission of malpractices as and when situation demands.

33. Writ petition stands disposed of. However, parties to bear their own cost(s).