1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1114 OF 2009 . Kanchan Harshad Bhongale. ..Petitioner. vs. The State of Maharashtra & Anr. ..Respondents. .... Mr. U.S. Jahagirdar, Senior Counsel, a/w. Mr. Sandeep S. Kinsiwale, for Petitioner. Mr. Bharat Mehta, AGP, for Respondents. .... CORAM : S.J.KATHAWALLA, J. DATE : 14TH SEPTEMBER 2009. P.C. Heard counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr. Bharat Mehta waives service for respondents. 3. The petitioner has filed this writ petition challenging an order dated 9 th April 2009 passed by the Additional Controller of Stamps whereunder the licence of the petitioner of selling stamps is cancelled. The petitioner was a licence stamp vendor holding licence since the year 1998. 4. The respondent no.2 issued show cause notice dated 7 th 2 January 2009 to the petitioner. In the said notice, it was alleged that the Assistant of the petitioner was entering the entries in the register, though the petitioner was present. It was also alleged that after inspecting the stock, it was noticed that total 658 papers were stamped in advance with the seal of the stamp vendor. It was also alleged that on 23 rd December 2008, the petitioner had sold 100 Non-Judicial stamp papers of Rs.100/- to one Mr. Mohanlal Yadav, Advocate. It was further alleged that while inspecting the sale register, it was found that as per the Demand Note (Indent of the petitioner) dated 24 th December 2008, the petitioner had submitted the demand to the office and the petitioner had collected the said stock of stamp papers on 30 th December 2008. Therefore, it was necessary for the petitioner to enter and show the said stock in the balance stock of 30 th December 2008. Instead, the petitioner had shown the said stock in the balance stock of 29 th December 2008 and sold the same accordingly. It was therefore alleged in the show cause notice that the petitioner has violated Rules 13(1) and (2) of the provisions of the Bombay Stamp 3 Supply and Sale Rules, 1934, and the provisions of section 34 of Bombay Stamp Act, 1958, and the petitioner was called upon to explain as to why her licence to sell the stamps should not be cancelled as per Rule 10 of the Bombay Stamp Supply and Sale Rules, 1934 and further she was directed to submit her reply/explanation within three days. 5. The petitioner received the show cause notice on 13 th January 2009 and submitted her reply on 16 th January 2009. The petitioner has submitted the following explanation to the said notice dated 7 th January 2009. (i) With reference to point no.1 of the said notice, the petitioner pointed out that she was not keeping well due to cough, cold and fever since the night of 29 th December 2008 and therefore, immediately on 30 th December 2008, she visited her family doctor who advised her to take rest and prescribed certain medicines. As the petitioner was not keeping well, she had instructed her Assistant to sit besides her and help her in maintaining the register. It was also 4 pointed out that the Assistant was maintaining the register under her observation and supervision. It was also pointed out that the petitioner was not even in a position to open the office but considering the heavy rush of the people on 30 th December 2008 and to avoid their inconvenience, the petitioner had opened the office. (ii) With reference to point no.2 of the said notice, the petitioner pointed out that various customers had enquired about the availability of the stamp papers and placed orders for them. Considering the quantity and value of papers required by them, the petitioner had requested them to submit the letters as per their requirements. Therefore, the consumers had requested the petitioner that whilst they would bring the letter, she may keep the papers ready. However due to heavy traffic, the said consumers could not reach before 4.25 p.m. Therefore considering the quantity of stamp papers demanded, the petitioner started signing them. Thereafter, the officers who visited the office on 30 th December 2008 at 4.25 p.m., directed the petitioner to close the sale register. At that time, the 5 consumers came with the letters but due to the directions of the Officer/Inspector, the petitioner could not supply the said papers to the said consumers. Some of those consumers had purchased the papers on 31 st December 2008 from the petitioner and accordingly the entry was made in the register, but some of them could not purchase the papers as the office of the petitioner remained closed upto 1.00 p.m. on 31 st December 2008. This was because, as per the directions, the petitioner had to submit the sale register in the office of the Superintendent of Stamps. Therefore, the petitioner was in the office of the Superintendent of Stamps from 10.00 a.m. to 12.00 noon. The letters issued by the consumers about their requests for stamp papers were annexed with the reply to the show cause notice. (iii) With reference to point no.3, it was pointed out that the stamp papers were sold to Mr. Mohanlal Yadav, Advocate as per the request made by the Advocate and letter to that effect was also annexed with the reply to the show cause notice. (iv) With reference to point no.4, it was pointed out that 6 as per the Demand Note (Indent) dated 24 th December 2008, the petitioner was supplied with 5000 stamp papers of Rs.100/- and 2000 stamp papers of Rs.50/-. On 29 th December 2008, at 4.40 p.m. after closing her office, the petitioner went to collect the stamp papers but as the quantity of stock was more and she was also required to put the stamp of signature, therefore, due to shortage of time, the petitioner had collected 1000 stamp papers of Rs.100/-. Balance stock of 4000 stamp papers of Rs.100/- and 2000 stamp papers of Rs.50/- was collected on 30 th December 2008. The petitioner has collected the 1000 stamp papers of Rs.100/- on 29 th December 2008; therefore the said stock was entered in the register in the stock of 29 th December 2008. 6. By an order dated 17 th February 2009, the Controller of Stamps informed the petitioner that she has breached the provisions of Rules 13(1), 13(2) and 17(2) of the provisions of the Bombay Stamp Supply and Sale Rules, 1934 and also breached the provisions of section 34 of Bombay Stamp Act, 1958. Furthermore, the reply and 7 explanation submitted by her was not proper. Therefore, her licence stands cancelled and she should deposit the balance stock of stamp papers, registers and licence within three days with the office of the Superintendent of Stamps. 7. Being aggrieved and dissatisfied by an order dated 17 th February 2009 passed by the respondent no.2, the petitioner filed Writ Petition No.451 of 2009 before this Court. The said petition was disposed of on 12 th March 2009 with directions to give fresh hearing to the petitioner. 8. The respondent no.2 by an order dated 9 th April 2009 cancelled the licence of the petitioner and observed that the petitioner has breached the provisions of Rules 13(1), 13(2) and 17(2) of the provisions of the Bombay Stamp Supply and Sale Rules, 1934 and also breached the provisions of section 34 of the Bombay Stamp Act, 1958. Also, the reply and explanation submitted by her is not proper. 9. Being aggrieved by the order dated 9 th April 2009 passed by the respondent no.2 of cancelling the licence of the petitioner, the 8 petitioner filed this writ petition on the various grounds mentioned in the petition. 10. Apart from the other contentions mentioned in the petition, it was mainly argued that the punishment imposed of cancellation of licence is disproportionate to the gravity of the irregularities mentioned in the show cause notice, as well as there is no punishment prescribed for the irregularities in the Rules. It was also contended that there is no past record against the petitioner of any irregularities. It was also contended that the licence of the petitioner had been cancelled on 17 th February 2009 and the petitioner is without any business and source of income since the last 7 months and that deprivation should be treated as a sufficient warning to the petitioner. It is also submitted that the fact that the petitioner was unwell on relevant date has not been doubted by the department. It is submitted that in any event, the punishment imposed is shockingly disproportionate and moreover, no loss is caused to the Government. It is submitted that in the instant case, the doctrine of proportionality 9 is required to be invoked since the punishment imposed on the petitioner is grossly excessive, disproportionately high and unduly harsh. The said decision, therefore, cannot claim immunity from judicial scrutiny and it is always open to the Court in exercise of its jurisdiction under Article 226 of the Constitution of India to interfere with such punishment in appropriate cases. In support of the aforesaid contentions, the petitioner has relied on the following decisions of the Hon’ble Apex Court :- (i) Ved Prakash Gupta v/s. M/s. Delton Cable India (P) Ltd., (1984) 2 SCC 569; (ii) Ranjit Thakur v/s. Union of India and Others, (1987) 4 SCC 611; (iii) Coimbatore District Central Co-operative Bank v/s. Coimbatore District Central Co-operative Bank Employees Assn. and Another, (2007) 4 SCC 66; (iv) Ex-Constable Ramvir Singh v/s. Union of India and Others, (2009) 3 SCC 97. 11. The learned Advocate appearing for the respondent has supported the impugned order and contended that the order be 10 continued. 12. I have considered the aforestated submissions advanced on behalf of the learned Advocate appearing for the petitioner and have also gone through the decisions of the Apex Court relied upon by the learned Advocate appearing for the petitioner. It is true that the petitioner has committed minor infraction of the requirement laid down under the Bombay Stamp Supply and Sale Rules, 1934. However, as per the charges laid against the petitioner and the explanation given thereto by the petitioner, it cannot be said that the petitioner has intentionally violated/disobeyed the provisions of the said Acts/Rules. The petitioner was unwell and has submitted a medical certificate which is not doubted by the respondents. The explanation given by the petitioner to the charges appears to be truthful and establishes that the petitioner did not have mala-fide intention and all her actions were with the intention of serving her customers and to avoid causing any inconvenience to them. Though the petitioner has committed certain irregularities and has therefore 11 not acted in conformity with the rules, the irregularities committed has not caused any harm to the Government. There is not a single complaint against the petitioner who has been a stamp vendor since more than one decade. Cancellation of licence for all times would permanently deprive her of her livelihood because of which her family members/dependants will also suffer. The punishment would therefore, be unduly harsh and not in proportion to the irregularities committed by her. Therefore, in my view, cancellation of the petitioner’s licence from 17 th February 2009 till date i.e. for a period of about 8 months with a warning to strictly adhere to the Stamp Act and the Rules, would be an appropriate punishment for the petitioner for the irregularities committed by her. 13. The following order is therefore, passed by this Court :- (i) Cancellation of the petitioner’s licence since 17 th February 2009 upto 15 th October 2009, be treated as punishment to the petitioner for the irregularities committed by her. (ii) The impugned order cancelling/ withdrawing the 12 licence of the petitioner shall stand revoked on and from 16 th October 2009, with a warning to the petitioner to strictly adhere to the provisions of the Bombay Stamp Act, 1958 and the Bombay Stamp Supply and Sale Rules, 1934, for all times in future. 14. The learned Advocate for the respondent has submitted that this Court should clarify that this order may not be used as a precedent in future. Needless to add that this order is passed in the peculiar facts and circumstances of the case. 15. Writ petition is accordingly disposed of with no order as to costs. [ S.J.KATHAWALLA, J. ]