NATIONAL GREEN TRIBUNAL
                      Principal Bench, New Delhi

                        Appeal No. 35 of 2012
                    Tuesday 4th of September, 2012


   Quorum

1. Hon'bleShri Justice M. Chockalingam
   (Judicial Member)
2. Hon'ble Prof. R. Nagendran
   (Expert Member)

   B E T W E EN :

   Intech Pharma Private Limited
   Through its Director, Mr.Divyanshu Saharan
   At 33/1A, DhargalInudustries Estate,
   Opp. RTO Naka DhargalPernem,
   GOA - 403513                                  .... Appellant

   AND

   Goa State Pollution Control Board
   Dempo Towers
   First Floor,
   Panaji,
   Goa 403001.                                     .... Respondent



   (Advocates appeared: Mr. Vijay Hansani, Mr.Gopal Singh, Mr.Ashish
   Mohan Mr.MukeshVerma, Mr.Pravesh Thakur and Ms SnehaKalita for
   appellant, Mr.Bhawanishankar V. Godnis and Mr. V. Madhukar for
   respondent)




                                                                Page 1 of 14
                           JUDGMENT

(Judgement Delivered by the Bench) This appeal is referred from the order dated 8.6.2012 made by the Goa State Pollution control Board, the respondent herein:

Short facts necessary for the disposal of this appeal can be stated thus. The appellant is an industry carrying on business in production of Fumigant (a class of Insecticide) Methyl Bromide which is used for quarantine and pre-shipment fumigation. The respondent board by its order dated 7.8.2008 bearing No. 6/1629/08-PCB/3231 granted consent to the appellant to operate under the Water (Prevention and Control of Pollution) Act 1974 and under the Air (Prevention and Control of Pollution) Act 1981. Pursuant to the said order the appellant established its unit and operate the same in accordance with the law.

While so, on 12.4.2012 an accident had taken place and the Member Secretary of the respondent who is presently residing at house No. 70/1 AraboDhargalPernemGoa which is situated near to the appellant's industry personally visited the place and challenged that he would not allow the appellant to run the industry because it would cause damage to the health of his family members. Following the same a show- cause notice dated 21.5.2012 was served on the appellant on 23.5.2012 and only one day was given to the appellant to put forth his explanation. Accordingly the appellant appeared on 25.5.2012 and placed his explanation. On the day certain directions were issued to the appellant by the Chairman of the respondent as well as by the scientist and a period of one month was granted to comply with the said direction.The appellant also made all his sincere effort to follow the said directions passed by the respondent. While the respondent was granted one month time to comply with the directions the respondent, to the utmost shock of the appellant, the respondenthas made the impugned order on 8.6.2012. The proceedings dated 25.5.2012was attended by the Member Secretary also and hence in order to wreck vengeance the Member Secretary of the respondent was in a hurry to pass the impugned order within 15 days.

While 15 days notice should have been given, the show-cause notice dated 21.5.2012 was served on the appellant on 23.5.2012 calling upon him to appear and show cause on the hearing dated 25.5.2012 and thus it was a case of denial of reasonable opportunity of being heard. Apart from that, after granting a month's time on 8.6.2012 thepassing of the impugned order would clearly indicate the personal grudge of the Member Secretary of the respondent and also illegal. The principle raw material liquid Bromide was imported from USA and the same material worth Rs.4crores is kept in the port of Nhavasheva since last three months. The appellant who is supplying methyl bromide to Government Agencies could not supply as per the purchase orders. The appellant, a small scale industry has bank loans amounting to Rs. 11.60 crores and the appellant is not in a position to pay back its debt. The unit has 80-100 people employed in Goa and 200 household peoples who are dependent on the unit directly or indirectly remained unemployed.Hence the impugned order has got to be set aside.

The respondent has filed an affidavit in reply containing thefollowing averments. The appellant has made certain allegations against the officials which were personal in nature and hence the respondent can neither admit nor deny the same. The appellant cannot take advantage of those uncontroverted allegations. By the Order bearing No. 5/2127/02-PCB/3232 dated 7.8.2008 and bearing No. 6/1629/08- PCB/3231 dated 7.8.2008 consent to operate was granted to the appellant by Goa State Pollution Control Board under the Water (Prevention and Control of Pollution) Act 1974 And under Air (Prevention and Control of Pollution) Act 1981, respectively. An accident occurred at the appellant's unit on 12.4.2012 during which there was a leakage of bromine gas which was highly toxic in nature. During the course of an inspection conducted by the board officials on 25.4.2012, it was observed that:

1. Empty barrels used to store Sulphuric acid are stored within the unit's premises.

2. The plant is maintained very badly and urgent repairs are needed particularly with respect to replacement/modification/alteration to the rusted portion of the plants structure and framework.

3. Effluent Treatment Plant has not been set up to effectively treat and dispose off waste water from the reactor of the unit.

It was also observed that the area/soil adjacent to the unit particularly at the point the raw material was transferred from the tankers to the holding tank of the unit has been contaminated. The officials of the board came to know that the appellanthad not complied with the conditions as stipulated in the consent to operate order issued to the unit by the Board and the unit was very poorly maintained leading to the leakage of Bromine Gas from the unit. Thus from the state of affairs it was clear that there was need for remediation of the vicinity around the unit as far as the already contaminated area was concerned. Apart from the same steps were required to be taken for further safeguarding of the area in view of the other violations found existing. Hence it became necessary to issue directions to the appellant in that behalf. In exercise of the powers under the above enactments the Board by its letter dated 21.5.2012 firstly directed the appellant unit to immediately stop/suspend the operation of the unit and to remain present before the Chairman of the Board on 25.5.2012 in order to give its reply on the finding as contents in the report of inspection and also directed to submit a detailed action plan and also the measures for remediation. The appellant unit was also directed to show-cause before the Chairman of the Board as to why the board should not cancel and withdraw the consent to operate order issued on 7.8.2008. Thus the letter/order 21.5.2012 consisted of two parts in respect of the directions for immediate remediation within one month while the other part was a show-cause notice. The said two parts were independent of each other and thus the appellant without understanding the same has come forward to state that though a month's time was granted for complying with directions the respondent has made an order even before the end of one month and thus the appellant could not make out a ground out of the same. While the appellant on receipt of the show- cause notice dated 21.5.2012 has submitted a reply on 24.5.2012 in respect of directions of the Board and thus it would be clear that not only an opportunity of hearing was afforded to the appellant but the same was also availed by the appellant and hence the appellant cannot be allowed to state that reasonable opportunity was not given to him. In so far as hearing on 25.5.2012 was concerned it was only to enable the appellant Page 4 of 14 unit to submit its explanation on the findings in inspection report and also to show cause as to why Board should not cancel and withdraw the consent order dated 7.8.2008. Thus a requirement to remediate the area and the show-cause were independent. The Chairman of the Board after hearing the representative of the appellant has recorded a finding that the reply submitted by the appellant was unsatisfactory and appellant unit has committed gross violation of the conditions as contained in the consent to operate Order dated 7.8.2008 issued by the Board which thereby resulted in the accident that occurred in the unit on 12.4.2012. The authority came to the conclusion that due to the said negligence by the appellant unit the environmental degradation in the vicinity of the unit has occurred. A reading of the Order would make it clear that with regard to safe storage of chemical at the site and the remediation of the degraded area at the site certain directions were issued to the appellant unit and one month time was granted for remediation of the soil in the vicinity of the unit. Under the afore stated circumstances and in exercise of the powers vested in the Board under Section 27 read with Section 25/26 under Section 33 A of the Water (Prevention and Control of Pollution) Act 1974 and Section 21 read with Section 31A of the Air (Prevention and Control of Pollution) Act 1981 the Board by its Order dated 8.6.2012 has cancelled the consent to operate order issued to the appellant on 7.8.2008 and the appellant was also directed to immediately stop/suspend the operation of the said unit also to comply with certain measures.

The points that arise for consideration in this appeal are:

1. Whether the impugned order dated 08.06.2012 made by the respondent Board has to be set aside for not following the principles of natural justice?

2. Whether the proceedings dated 25.05.2012 and the impugned order dated 08.06.2012 were vitiated on the ground that they were based on the unfounded show-cause notice as alleged by the appellant.

3. To what relief the appellant is entitled?

Advancing the arguments on behalf of the appellant the Learned Sr. Counsel Mr. Vijay Hansani would submit that the appellant industry is carrying on business of production of fumigant- methyl bromide out of which a major part is being exported. The appellant has been supplying methyl bromide to Government as per the purchase orders. Being a small scale industry the appellant has raised bank loans in crores of rupees for carrying on its business at its unit and it has given employment for more than hundred persons. Following an accident that took place on 12.4.2012 in the unit the Member Secretary of the respondent Pollution Control Board who is residing in the neighborhood made a personal visit and at the time he made it out that he would not allow the unit to run at any cost because it was causing injury to the health of his family members and thus the personal grudge of the said officer has resulted in the impugned order. A show-cause notice dated 21.5.2012 was served on the appellant on 23.5.2012 calling upon him to appear and explain on 25.5.2012 and thus only one day was given to the appellant to put forth his version before the Chairman of the respondent though as per law 15 days' notice should have been given to the appellant by the respondent. The respondent who appeared on 25.5.2012 placed a hurriedly prepared explanation along with a request to give him further time to place his full explanation. Instead the authority has made an impugned order cancelling the order of consent to operate and thus the impugned order is one made by the authority in violation of principle of natural justice.

Added furtherthe Learned Sr. Counsel for the appellant, even at the time of the hearing on 25.5.2012 certain directions were issued to the appellant by the Chairman of the respondent to comply with the same within a period of one month therefrom. It is pertinent to find out that the granting of a month's time was also incorporated in the last part of the impugned order. In order to substantiate this content the Learned Sr. Counsel took the Tribunal to the relevant part of the impugned order. Having granted one month time to do a needful remediation the respondent has made the impugned ordervery hastily on 8.6.2012 behind the back of the appellant. The Learned Sr. Counsel pointed out that the proceedings dated 25.5.2012, was attended by the Member Secretary also and thus the order came to be passed in a hurry within 15 days and this would also speak of the ill-will and grudge of the Member Secretary.

The Learned Sr. Counsel would further submitthat following the directions passed by the Chairman of the respondent on 25.05.2012, the appellant took sincere efforts to follow the directions. Though it was brought to the notice of the authority, the impugned order came to be passed on 8.06.2012, to the utmost shock of the appellant. Pointing to site inspection report by the board officials and inspection report dated 02.05.2012 (page no. 26-31 of volumeII) a show-cause notice dated 25.05.2012, (page no. 32-35 of volume II) and also the copy of the impugned order dated 7.08.2008, the Learned Counsel with vigour and vehemence would urge that the particulars contained in the show-cause notice dated 21.05.2012, did not have the basis and also unfounded since the contents of the inspection report dated 25.04.2012 and show-cause dated 21.05.2012, were different and discrepant and apart from that the impugned order based on such show-cause notice and passed without considering the acceptable reply of the appellant dated 24.05.2012, cannot stand in law and hence it has to be set aside and the appeal has got to be allowed.

In answer to the above contentions the Learned Counsel for the respondent Board would submit that it is true that the appellant industry is carrying on business of production of fumigant-methyl bromide after getting an order of consent to operate dated 7.8.2008. A site inspection by the respondent Board officials took place on 25.4.2012 and an inspection report was submitted on 2.5.2012. Following a show-cause notice on 25.5.2012 the appellant filed its reply dated 24.5.2012. The Chairman of the Board in the proceedings dated 25.5.2012 has made the impugned order after finding the explanation tendered by the appellant unit was quite unsatisfactory. It is true that the show-cause notice dated 21.5.2012 was issued calling upon the appellant to appear and answer on 25.5.2012. It is well admitted by the appellant that the appellant submitted its reply on 24.5.2012. The same was well considered in the proceeding by the respondent Board that took place on 25.5.2012 and the impugned order was passed. Though the appellant was not given longer time to tender its explanation, appellant has prepared and placed the explanation as per the show-cause notice. Having availed the opportunity by filing the reply and also by participating in the proceeding dated 25.5.2012 now the appellant cannot be allowed to say that no reasonable opportunity was given and hence it cannot be a ground on which the Page 7 of 14 impugned order can be assailed. Pointing to the Board proceedings dated 25.5.2012 as found in page no 151-155 in volume II, the Learned Counsel would urge that the impugned order has two parts. While the first part was pertaining to the cancellation of consent to operate in view of the violation of the contents found therein, the second part of the order was with regard to a safe storage of chemicals at the site and remediation of the degraded area at the site. The reading of the minutes will make it apparent that the first part was pertaining to cancellation while the second part was in respect of the direction for remediation within a period of one month. While so, the appellant should not be allowed to state that the respondent Board has granted a month's time in its proceedings on 25.5.2012 to comply with the directions and even before the said time interval the Board has hastily passed the impugned order and hence the said contention of the appellant has to be rejected.

In his further submission the Learned Counsel would submit that in so far as the allegation made by the appellant against the Member Secretary of the board they do not require any consideration for the simple reason that he was not added as party. The respondent Board in the absence of any personal knowledge of the visit by the Member Secretary or the verbal exchange that took place cannot admit or deny the same hence the appellant cannot take advantage of the uncontroverted allegations.

The Learned Counsel would further submit that there were no discrepancy between the inspection report submitted by the officials before the Chairman and contents of the show-cause notice. The show- cause notice was well founded. The appellant on service of the said show- cause notice tendered his reply on 24.4.2012 and also participated in the proceedings. Since the explanation tendered was unsatisfactory and the Board noticed gross violation of the condition found in the consent order to operate, the Board in exercise of its power vested has cancelled the consent order to operate and has also issued direction and thus the appellant has no ground much less valid ground by which the impugned order could be set aside and hence the appeal has got to be dismissed.

The Tribunal paid its anxious consideration on the submission made on both sides and made a scrutiny of the document available in particular relied on by the parties.

Admittedly the appellant industry pursuant to the grant of consent order to operate under the Water (Prevention and Control of Pollution) Act 1974 and under the Air (Prevention and Control of Pollution) Act 1981 commenced and carried on its business of production of fumigant- methyl bromine. A site inspection of the appellant's unit was made by the respondent board officials 25.4.2012 and a report in that regard dated 2.5.2012 was submitted before the board. Following the same a show- cause notice dated 21.5.2012 along with directions under Section 31 (A) read with Section 21 (4) of the Air (Prevention and Control of the Pollution) Act 1981 and under Section 33 read with Section 27 of the Water (Prevention and Control of the Pollution) Act 1974 was issued calling upon the appellant to show-cause why not appellant be directed to immediately stop/suspend the operation of the unit and remain present before the Chairman of the board at 11.00 AM on 25.4.2012. On service of the said notice the appellant submitted its explanation in response to query raised in said show-cause notice on 24th May, 2012 before the respondent Board. The respondent Board took the matter for consideration on 25.5.2012, when it recorded its proceeding of personal hearing held before Chairman of the respondent Board. During the said proceeding the representatives of the appellant were also present.

Inter alia the said proceedings minuted on 25.5.2012 contained the following.

"The Chairman stated that the reply and say submitted by the unit in today's hearing was not satisfactory, particularly as it did not satisfactorily address the issue pertaining to safe storage of chemicals at the site and safe remediation of the degraded area at the site. As such the Chairman directed as follows:

1. All chemicals stored at the unit including raw materials and entire stock, raw materials etc. are to be removed from the unit premises latest by 31.5.2012 and an undertaking to this effect has to be submitted by the unit to this office.

2. On removal of all the chemicals from the unit and after approval by the inspectorate of Factories and Boilers the unit is to be sealed.

3. The unit is then directed to submit a new detailed comprehensive application for obtaining fresh Consent of Operate from the Board under the Water Act, Air Act and the Hazardous Waste Rules if it desires.

4. The opinion of the Inspectorate of Factories and Boilers shall also be taken by the Board prior to considering grant of any application in the future considering the safety of residents and environmental degradation.

Mr. Connie Fernandes. Scientist "C" of the Board further suggested the representative of the unit to submit detailed plan of action on:

(a) Mode of disposal of scrapped tankers especially in view of possible Bromine (residual) presence.

(b) The collection, in sealed, labeled containers storage (in safe enclosure) and appropriate disposal of Bromine contaminated soil as per Hazardous Waste (Management, Handling, Transboundary Movement) Rules 2008 as amended.

(c) Immediate submission of the relevant supplier/manufacturer issued and stamped MSDS (Material safety data sheet) for raw material used/by product/finished product generated.

The Chairman further directed the unit to take immediate steps to remediate the soil in the vicinity of the unit that has been contaminated due to the flow/discharge of chemicals/effluents from the unit within a period of one month."

While the matter stood thus, the order dated 8.6.2012 whereby the consent to operate order was cancelled along with a direction to the appellant to immediately stop/suspend the operation of the unit and comply with certain directions made therein within 7 days therefrom was made which is the subject matter of challenge in this appeal.

The appellant has assailed the impugned order on the ground that the order was an outcome of the ill-will and grudge of the Member Secretary of the respondent Board, that the order cannot be sustained since the respondent Board has violated the principles of natural justice while passing the order on the said show-cause notice pursuant to which Page 10 of 14 the impugned order came to be passed and apart from the inspection report, the show-cause notice and the impugned order were quite contrary to each other. It is also the ground of the appellant that after granting a month's time to comply with directions by taking remedial measures, the impugned order came to be passed within 15 days therefrom willalso affect said order. The respondent Board has flatly denied of the above grounds and that the said order is valid and legal.

After careful consideration of the contentions put forth and scrutiny of the documents, the tribunal is of the considered view that the order of the respondent under challenge cannot be sustained for more reasons than one. It is not in controversy that an inspection of the appellant's unit was made on 25.4.2012. It is contented by the respondent that a report pursuant to inspection was submitted before the Board on 02.05.2012. No material is available to indicate that a copy of the report was served on the appellant soon after the inspection but given only along with the show- cause notice. It is true that a show-cause notice dated 21.05.2012 along with the directions was served on the appellant calling for a reply and also the presence before the Chairman, of the Board.The said so called show-cause notice was defective on the material aspects and one which could not be acted upon. Admittedly show-cause notice was issued on 21.05.2012. It reads "hereby directed to immediately stop/suspend the operation of your unit at 33/1A. DhargalInsdustrial Estate, Oppo. RTO Naka, Dhargal, Pernem, Goa and to remain present before the Chairman of the Board on 25.04.2012 at 11.00 a.m. in order to submit your say as containedin the enclosed report of inspection..". Needless to say the day of appearance before the authority to explain the allegations made in a show-cause notice is a material and vital particularly in respect of which the addressee should be put on clear notice. Surprisingly, the show-cause notice dated 21.05.2012 and served on the appellant on 23.05.2012 has called upon the appellant to appear at 11.00 a.m. on 25.04.2012 before the Chairman of the Board. This cannot be considered as a mistake but it has to be termed as a defect in the show- cause notice. While the show-cause notice was served on 23.05.2012 the appellant has submitted his reply on 24.05.2012 and appeared on 25.05.2012. Thus it would be clear that the appellant was given a day's time to put forth his reply. Considering the contents of the report the time granted to the appellant to meet all the allegations was too short and Page 11 of 14 appellant could not but have prepared the reply hastily and hurriedly and placed before the authority below. It is also pertinent to note that the appellant at the end of its reply to the show-cause notice has requested further time to explain all the points in detail. The authority instead of granting sufficient time to put forth the reply, gave a day's time to tender an explanation and it also denied further time despite the request of the appellant. All the above would indicate the anxiety of the authority below to pass an order of cancellation of the consent order to operate which was originally granted in favor of the appellant.

A perusal of the order under challenge will make it abundantly clear that the reply put forth by the appellant was not considered by the authority while passing the order. Except making acomment that the reply placed by the appellant was not satisfactory, the authority had neither discussed not considered the contents of the reply. While the inspection was made on 24.04.2012 by the official of the Board, the report was submitted on 02.05.2012. Though the show-cause notice dated 21.05.2012 was served on appellant on 23.05.2012 and the proceedings before the Chairman were minuted on 25.05.2012, the impugned order cancelling the consent to operate order was made only on 08.06.2012. If really there was any immediate necessity to stop operation of the industry due to the leakage of bromide gas during inspection from the unit as found in the show-cause notice, there was no reason for the authority to wait till 21.05.2012 to issue a show-cause notice. Having given a day's time to the appellant to submit its reply, the respondent Board has made an impugned order after an interval of 15 days. The above factual situation as could be seen from the records would indicate that there was no immediate need or imminent danger to heath or degradation of environment. It remains to be stated that pursuant to the directions by the Member Secretary, the Board officials conducted an inspection on 25.04.2012 in order to ascertain on-site status of the plant activity. After making the inspection, the Board officials categorically observed that the unit was not in operation and only maintenance such as painting of the portion of the plant was in progress and empty barrels were seen. From the very report it would be quite clear that the appellant unit was not in operation and the painting work was in progress. Nowhere in the said report was any indication of pollution made a mention of. If really there was any act of pollution like gas leakage there was no impediment for the Page 12 of 14 officials who conducted inspection to state the same. Contrarily, the inspection report dated 02.05.2012 referred to the gas leakage reported in newspapers and on inspection the inspection officials reported "the inspection of protective clothing and safety equipment was carried out. It was observed that the company was in possession of all required equipment in working condition.It is also stated therein that there was wind flow during the same time because of which there was dispersal of gas in the surrounding area and officials were informed by appellant unit that the leakage was controlled by using all possible sources and the problem was resolved. At this juncture it has to be pointed out that the report dated 02.05.2012 did not speak of any gas leakage or air pollution or health hazard. Both the inspection report dated 02.05.2012 and the proceedings dated25.04.2012 do not indicate anything about the gas leakage or air pollution. The Tribunal is at a loss to understand the basis for the said show-cause notice stating that there was leakage of bromine gas from the unit on 12.04.2012 due to the poor maintenance of the unit and thus the appellant has not complied with the conditions as stipulated in the consent to operate order issued by the Board. Hence the show-case notice was not only to be termed as defective but also unfounded. No doubt all the proceedings which followed the same get vitiated and have to be declared as unsustainable in law.

True it is,that someallegations were made against the Member Secretary of the respondent Board and he was also not added as a party to these proceedings and hence the contentions put forth by the appellant side in that regard cannot be considered. But the report made by the official dated25.04.2012 speaks to the fact that the inspection was made only on the directions of the Member Secretary. It is not disputed anywhere that he was also present at the time of the proceedings on 25.05.2012 and it was he who signed the order under challenge.From all the above it is noticed that the contents of the earlier reports and the show cause notice were different. The order under challenge has been made not only not adhering to,and inviolation of principles of natural justice but also an outcome of non-application of mind. It is quite evident that the show-cause notice and the pursuant proceedings were prepared so hurriedly without caring about the contents of the same.The authorities not exercising the due care made an order with a drastic decision of closing the industry. In view of the above circumstances and Page 13 of 14 for the reasons stated above the impugned order has to be set aside and is set aside accordingly. Appeal is allowed leaving the parties to bear the costs.

Prof. Dr. R. Nagendran                            Justice M. Chockalingam
(Expert Member)                                          (Judicial Member)




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