SHANKARBHAI H PATEL Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard learned Counsel. Indian Railways Caterers Association and other Caterers, as petitioners, have preferred the present Special Civil Application challenging the order/communication dated 6-5-1999 issued by the Divisional Railway Manager (Comml.), Chhatrapati Shivaji Terminus, Mumbai imposing the ban on sale of bidi/cigarettes on train and platforms. This order/communication dated 6-5-1999 is reproduced as under :-

(2.) I have heard learned Counsel for the petitioners at length. The learned Counsel for the petitioners was called upon to show as to which is that provision of law or rule, which has been violated by the imposition of the ban, as aforesaid, but the learned Counsel failed to point out any such provision of law or rule, which can be said to have been violated by the imposition of the ban on the sale of bidi and cigaretes. So far as the violation of the agreement as such is concerned, this Court having gone through the copy of the agreement, which is annexed as Annexure 'C', finds that there is no specific mention permitting the sale of bidi and cigarettes as such. The learned Counsel submits that it is included in the other articles and in the agreement there is no express prohibition against sale of bidi and cigarettes and, therefore, in absence of such an express prohibition against the sale of bidi and cigarettes, which has been going on for several years, there is no question of imposition of such a ban to the prejudice of the interest of the licensees. Even if it is assumed that the licensees have been doing and have been engaged in the sale of bidi and cigarettes on the railway platforms and trains for years together, if for valid reasons the Government takes a decision so as to impose a ban in the interest of the health of the public at large and the travellers and with reference to the protection of environment and the environmental laws, it. cannot be said that there is violation of the agreement as such. It is always open for a Welfare State to take appropriate policy decisions at appropriate time keeping in view the reasons of health, keeping in view the Directive Principles as enshrined in the Constitution. If the Government has to act so as to achieve the Directive Principles and in that direction a step is taken, it cannot be said that such steps should be declared to be illegal by the Court, because it is violative of some agreement. It may also be pointed out that it is not a case of any statutory agreement - apart from the fact that as a question of fact, this Court does not find it a case even of violation of the agreement. Such ban can be imposed for just reasons to take care of the health hazards. All that has been done is to stop the sale of bidi/cigarettes from the catering establishments on the railway platforms and the Government is within its right and justified to issue such orders and to say that such instructions should rigidly be followed. In such matters, there is no question of opportunity of hearing because it is not a case in which there is any penal consequence or violation of any legal right so as to deny any earned benefit. The question of giving of opportunity before taking a particular action arises only when an earned benefit is sought to be taken away and by no means it can be said that it is a case in which any earned benefit of any of the licensees has been taken away by the impugned communication dated 6-5-1999.

(3.) Learned Counsel for the petitioner has placed heavy reliance on a decision of this Court in the case of G.S.C.S. Corporation v. Regional P. F. Commissioner, 1999 (1) GLH 803. In this case of G.S.C.S. Corporation (supra), a Co-ordinate Bench of this Court was'dealing with the order passed by the Regional P. F. Commissioner and in para 17, the Court has observed that in a case where the accused has acted as adjudicator or opportunity of cross- examination has not been granted, or opportunity of leading evidence has wrongly been denied or for that matter, no reasons have been recorded before passing the order adversely affecting a person, it will be a case of breach of principles of natural justice. It is, therefore, obvious that the cases where the proceedings were held in the nature of quasi-judicial proceedings affecting the rights of the parties under a particular enactment, which in this case was the Provident Fund Act, the reasonable opportunity has to be granted as required by the statute itself and keeping in view the very nature of the proceedings. In the facts of the present case, it has been mentioned at the very outset that there is no question of violation of any rule or any provision of law and it cannot be said that the imposition of ban as such is an order to deprive any of the licensees of any earned benefit and, therefore, in this type of cases, the requirement of following the principles of natural justice cannot be invoked, more particularly when the action, which is challenged, is in fact based on a policy decision so as to give effect to the object contained in the Directive Principles, which we cherish the most to achieve. If such objects are to be achieved and for that purpose based on the principle of reasonable classification and keeping in view the reasons of public health and to reduce the health hazards, if the Government takes a decision, which may be unpleasant to certain persons or parties or the licensees, and such action may be burdensome to some minds, yet this price, a small price indeed has to be paid, if at all we mean this country to be governed by rule of law in conformity with the Directive Principles contained in the Constitution. Therefore, the mere fact that it was not objected to for number of years in past to sell bidi and cigarettes on the railway platforms, would not confer any right on the licensee to continue the sale of these particular items.