Allowed

M/S. Sunil Hotels Pvt.Ltd. v. State of Maharashtra and 4 Ors.

Bombay HC8 Aug 2014WP/864/2014

Case brief

AI extract

What is this about?

In a writ petition challenging suspension of a police licence based on rule breaches and pending criminal cases, the Bombay High Court quashed both departmental and appellate orders for violating principles of natural justice due to lack of personal hearing and reasoned decision-making, directing a fresh passing of orders.

What did the court decide?

The impugned orders dated 18 February 2013 and 1 March 2014 are set aside. Petitioner entitled to a personal hearing before passing a fresh order.

M/S. Sunil Hotels Pvt.Ltd. Vs State of Maharashtra and… — Service and Employment | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.864 OF 2014

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M/s. Sunil Hotels Private Ltd. through Shri. Thakur Lalji Beniprasad Singh. ..Petitioner. vs. State of Maharashtra and ors. ..Respondents.

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Mr. P. C.Kansara for the Petitioner. Mr. J.S. Saluja, A.G.P. for the State.

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CORAM : M. S. SANKLECHA, J. DATE : O8 AUGUST 2014

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PC:

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At the request of the Counsel for both sides, the petition is being disposed of at the stage of admission itself.

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This petition under Article 226 of the Constitution of India challenges the orders dated 1 March 2014 and 18 February 2013 passed by the Principal Secretary of the State of Maharashtra as the Appellate Authority and the Deputy Commissioner of Police respectively under Section 33 of the Maharashtra Police Act 1951 (“Police Act”) read with Rules for Keeping Places of Public Entertainment in Greater Bombay, 1953 (“the Rules”). The impugned orders suspend the petitioner's police licence for a period of 21 days.

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The police licence enables the petitioner to carry on its business of Lodging and Boarding.

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On 2 February 2013 the Dy. Commissioner of Police -respondent No.3 issued a show cause notice to the petitioner, The above notice issued under Rule 27 of the Rules called upon the petitioner to show cause as to why the police licence granted to it should not be cancelled. The basis of the show cause notice was the breach of various Rules and the consequent criminal prosecutions filed against the petitioner which were pending on the date of the show cause notice.

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The petitioner by letter dated 6 February 2013 responded to the aforesaid notice dated 2 February 2013 denying the allegations. In particular in the reply the petitioner pointed out that the notice is not sustainable as it is based on pending criminal proceedings and therefore, premature. In any case, the petitioner pointed out that the alleged breaches of the Rules had not taken place as alleged.

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However, the Dy. Commissioner of Police by an order dated

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18 February 2013 did not accept the petitioner's contention and held that the petitioner had committed the breaches of the Rules and inter alia relied upon the pending criminal prosecutions against the petitioner and its employees. Consequently the police licence was cancelled for 21 days for having committed breaches of the Rules.

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The petitioner being aggrieved filed an appeal under Section 33 of the Act read with Rule 28A of the Rules. The Appellate Authority by an order dated 1 March 2014 upheld the order of the Police Commissioner and confirmed the cancellation of the licence for a period of 21 days.

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This petition challenges the above orders dated 18 February 2013 and 1 March 2014 of the Competent Authority and the Appellate Authority respectively.

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Mr. Kansara learned Counsel appearing on behalf of the petitioner in support of the petition submits as under:-

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a) The issue of suspending a licence pending criminal prosecution is no longer open to debate as the issue is covered in

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favour of petitioner by the decision of this Court in Dilip J. Bhatia vs. The Commissioner of Police, Thane (Writ Petition No.7271/1999) rendered on 20 July 2000 and the decision of the Division Bench of this Court in Maruti Vithal Gopale vs. The State of Maharashtra and anr. (Writ Petition No.5675/2006 rendered on 12 October 2006. In both the above decisions a view has been taken that a licence cannot be cancelled/suspended /revoked only on account of the fact that criminal proceedings for any offence is pending in respect of the licence issued under the Act;

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b) The initiation of proceedings on the basis of pending criminal proceedings being without jurisdiction the show cause notice itself be quashed; and

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c) The impugned orders are in breach of principles of Natural Justice in as much as they do not consider the petitioner's submissions and thus are non speaking orders.

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As against the above Mr. Saluja, learned Counsel appearing for the respondent State submits as under:-

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a) The present proceedings have been initiated for breaches of the Rules and not only on the basis of the pending criminal proceedings. The reliance on the criminal proceedings in the notice was only for the purpose of informing the petitioner the basis of the notice. This was so as the basic facts in respect of both the proceedings are identical; and

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b) The decisions relied upon by the petitioner are not applicable to the present facts.

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In the above view of the matter it is submitted that no interference is called for.

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There can be no manner of doubt that criminal proceedings and department proceedings are separate and independent proceedings. There is no bar on both the proceedings running parallel. This is for the reason that the facts in both cases though identical/similar yet the standard of proof required for two proceedings are different i.e. in criminal proceedings proof beyond reasonable doubt while in civil proceedings it is preponderance of probability. Thus, even if the person is acquitted in criminal proceedings it does not necessary follow that the departmental proceedings against the party will also be dropped. Therefore, the initiation of the present proceedings by issue of the show

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cause notice by the authorities cannot be faulted as being without jurisdiction.

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The issue raised by the petitioner is that in the present facts the notice relies upon the pending criminal proceedings to visit suspension of the police licence upon the petitioner. However, the reliance is upon the papers and proceedings which form the basis of the criminal cases i.e. stationary, LAC register, Panchanama and FIR. These papers according to the respondent set out the factual particulars in support of the allegation of breaches of the Rules. The show cause notice sets out alleged breaches of Rule 6, 7A, 8(1), 8(2), 21A, 23B, 24 and 25 of Rules by the petitioner. In fact in Para 12 of the notice it is also clarified that the notice is being issued only for breach of Rules. Therefore, though the notice also sets out the various criminal proceedings which are pending it is essentially for breaches of the Rules. The decision of this Court in Dilip J. Bhatia (supra) and Maruti Vithal Gopale (supra) are distinguishable as in both the cases the basis of the departmental proceedings were only pending criminal proceedings and not breaches of the Rules independently as alleged in departmental proceedings in the present show cause notice. Thus, no fault can be

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found with the show cause notice dated 2 February 2013 issued by the Dy. Commissioner of Police.

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The petitioner in its reply to the notice did submit that pendency of criminal proceedings would not justify cancelling a licence under Section 162(2) of the Act as already held by this Curt in Dilip J. Bhatia (supra) and Maruti Vithal Gopale (supra). Besides the petitioner also submitted that there has been no violation of the alleged Rules as alleged.

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On 18 February 2013 the Dy. Commissioner of Police passed an order suspending the petitioner's police licence for 21 days. However, the order dated 18 February 2013 only records the breaches of the rules as alleged in the notices without considering the petitioner submissions in respect of the notice. Moreover, like the show cause notice, the order dated 18 February 2013 also records the various pending criminal proceedings to suspend the licence.

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On appeal, the the Principal Secretary by order dated 1 March 2014 dismissed the Petitioner's appeal by merely confirming the

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order dated 18 February 2013 of the Dy. Commissioner of Police. It merely states that there have been breaches of the Rules by the Petitioners but does not examine the grievances of the Petitioner with the order passed by the Dy. Commissioner of Police. The order dated 1 March 2014 of the Appellate Authority does not deal with the Petitioner's contention that Rules do not apply and that there has been no violation/ breach of Rules on its part. In fact, the appellate order dated 1 March 2014 gives no reasons. It would be necessary to reproduce the finding portion of the order passed by the Appellate Authority which reads as under:

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“I have heard the Appellant and Respondent, also perused all the papers and also the report submitted by Joint Commissioner of Police ( L & O) and all the papers submitted by the Appellant and it is seen that asper the incidence taken place in the establishment there is breach of Rule7(A), 7(1), 6, 21A, 23B, 25, 24 of Place of Public Entertainment Rules, 1953 and also of Section 131AA of Mumbai Police Act, 1951. Further the Appellant was head before passing of the order, hence, the principle of natural justice were followed. On the earlier occasion also for breach of rules the Police Licence of the Appellant was suspended for 15 days in 1997, 15 days in 1999, 5 days in 2000, 4 days in 2006, 31 days in 2008, 7 days in 2008 and warning was issued in the year 2009. Still there is no improvement in the Appellant. The Criminal proceeding and administrative action are two different and independent action and Licensing authority is empower to take action for the breach of rules. In the present proceeding only breach

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of rules are considered and after giving opportunity of hearing to the Appellant, the Licensing Authority in exercise of power conferred under Rule 27 of Public Entertainment Rules, 1953 suspended the Police Licence of the Appellant for a period of 21 days. Considering all the fact, the order passed by the Respondent for breach of rule is correct.”

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It would be noticed that there are no reasons given to uphold the order of Dy. Commissioner of Police. It is axiomatic that every authority including an appellate authority must give reasons for its decision. A party to an appeal is entitled to have the satisfaction that there has been due application of mind and the reasons are recorded to enable the parties to know why it has either been allowed or rejected. This alone will inspire confidence in the quasi judicial authorities. Thus, the order of the Appellate Authority needs to be set aside.

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As pointed out herein above, even the original order dated 18 February 2013 of the Dy. Commissioner of Police has not considered the petitioner's submissions in reply to the notice. Thus, even the order in original is a non speaking order.

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In view of the above, the orders dated 18 February 2013

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and 1 March 2014 passed by the original authority (Dy. Commissioner of Police) and the Appellate Authority (Special Secretary) respectively are set aside. However the show cause notice dated 2 February 2013 is not disturbed. The Dy. Commissioner of Police would pass fresh order on the notice dated 2 February 2013 after granting a personal hearing to the Petitioner.

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Accordingly, the petition is allowed in the above terms. No order as to costs.

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(M.S. SANKLECHA, J.)

M/S. Sunil Hotels Pvt.Ltd. v. State of Maharashtra and 4 Ors.

Case brief

What is this about?

What did the court decide?

M/S. Sunil Hotels Pvt.Ltd. v. State of Maharashtra and 4 Ors.

Case brief

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What did the court decide?

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