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2009 DIGILAW 1620 (JHR)

Birju Sao v. State of Jharkhand

2009-12-18

D.G.R.PATNAIK

body2009
Order Heard counsel for the parties. 2. The petitioner in this writ application, has prayed for issuance of a writ of certiorari for quashing the Memo No.555/ Aa dated 26.10.2004 (Annexure-2) passed by the respondent no. 2, whereby the petitioner's trade licence granted to him under the Bihar Trade Articles (Licence Unification) Order, 1984, was cancelled. Petitioner has also challenged the order dated 4.8.2005 (Annexure-4) passed by the respondent no. 3, whereby the appeal filed by the petitioner against the impugned order of the respondent no. 2, has been rejected by confirmation of the impugned order of the respondent no. 2. 3. The petitioner was granted licence under the Bihar Trade Articles (Licence Unification) Order, 1984 for running a PDS shop in the year 1992. On 8.12.2003, one co-villager of the petitioner namely, Narendra Sao, was intercepted while he was found transporting mustard oil seeds on his motorcycle. On the allegation that mustard oil seeds were lifted from the petitioner's PDS shop, an FIR was instituted at the police station. The petitioner who was named in the FIR as an accused, was arrested and remanded to judicial custody. 4. Subsequently, by the impugned order passed by the respondent no. 2, the petitioner was informed that his licence was cancelled. 5. The appeal filed by the petitioner against the order cancelling his licence, was also rejected by the Appellate Authority. 6. Counsel for the petitioner has assailed the impugned order on the following grounds: 1. The impugned order has been passed without application of judicial mind and merely on the basis of suspicion and without considering the facts of the case in proper perspective. 2. No show-cause notice was served upon the petitioner before proceeding to cancel the licence granted to him. 3. The petitioner has not been accused of having violated any of the terms and conditions of the licence granted to him under the Bihar Trade Articles (Licence Unification) Order, 1984. 7. Explaining the above grounds, counsel for the petitioner submits that the stand taken by the respondents that the petitioner was served with the show-cause notice containing six charges on 12.7.2004, is totally false and misleading. Learned counsel argues that even as admitted in the counter-affidavit, the petitioner was remanded to judicial custody in connection with the aforementioned criminal case on 4.7.2004, and he could secure his release on bail in the month of January 2005. Learned counsel argues that even as admitted in the counter-affidavit, the petitioner was remanded to judicial custody in connection with the aforementioned criminal case on 4.7.2004, and he could secure his release on bail in the month of January 2005. Apparently, the petitioner was lodged in custody on 12.7.2004 which is the purported date on which the show-cause notice was alleged to have been issued to the petitioner. The fact therefore declares that the petitioner was not served with any show-cause notice, nor was given any opportunity to explain and to defend his case. Learned counsel adds further that though, it has been claimed in the counter affidavit that the petitioner's shop was inspected, but in the same inquiry report, it has been categorically admitted that at the time of visit of the petitioner's shop, he was not present in the shop and therefore, inspection could not be carried out. In absence of any inspection being carried out, the respondent authority could not have come to any definite conclusion that there was discrepancy in the stock of articles maintained by the petitioner. 8. Counsel for the respondents on the other hand, would submit, by reference to the various paragraphs of the counter-affidavit; that in the inquiry conducted by the Sub-Divisional Officer, and from the statement of the villagers, who were BPL Card Holders, it was found that the petitioner was misusing his licence and has been making irregular supply of commodities including kerosene oil and wheat amongst the Red Card Holders. It was also informed that a false entry in the stock register was made by the petitioner at the time of delivery of kerosene oil. 9. On hearing the rival submissions and on going through the records of the case, the fact which emerges is that the respondents have claimed that they have served show-cause notice upon the petitioner. Apparently, on the date when show-cause notice was purportedly issued, the petitioner was in judicial custody. There is no such supportive document filed by the respondents to confirm that the show-cause notice was in fact served upon the petitioner and that after his release from custody, he was given due opportunity of being heard. As it appears, admittedly, the purported inquiry conducted by the Sub-Divisional Officer was not in presence of the petitioner. There is no such supportive document filed by the respondents to confirm that the show-cause notice was in fact served upon the petitioner and that after his release from custody, he was given due opportunity of being heard. As it appears, admittedly, the purported inquiry conducted by the Sub-Divisional Officer was not in presence of the petitioner. Such inquiry if conducted behind the petitioner's back, is certainly in violation of the principles of natural justice and no action could have been taken against the petitioner on the basis of such one sided inquiry and that too, without affording adequate opportunity to the petitioner of being heard. 10. For the reasons stated above, I find merit in this writ application. Accordingly, the same is allowed. The impugned order dated 26.10.2004 (Annexure-2) passed by the respondent no. 2, is hereby quashed. 11. It appears from the impugned order i.e. order dated 4.8.2005 (Annexure-4) that the Appellate Authority has failed to consider the petitioner's case including the fact that no specific statement has been given as to which of the terms and conditions of the licence, was violated by the petitioner. The appellate order appears to have been passed without application of judicial mind and in a mechanical manner. For the aforesaid reasons, the impugned order dated 4.8.2005 (Annexure-4) passed by the Appellate Authority is also not sustainable and therefore, is hereby set aside. This application is disposed of accordingly, with a liberty to the petitioner to file a fresh representation before the concerned authorities for restoration of his licence and alternatively, for grant of fresh licence. The concerned authorities of the respondents shall, within three months from the date of receipt of the representation, consider the same and take an appropriate decision on the same, by recording a reasoned and speaking order and shall effectively communicate such decision to the petitioner. Let a copy of this order be given to the learned counsel for the respondents. .