Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 2225 (ALL)

BUDDHI SAGAR YADAV v. STATE OF U. P.

2009-05-13

ARUN TANDON

body2009
JUDGMENT Hon’ble Arun Tandon, J.—Petitioner is fair price shop agent of the shop of the village Kethwaliya Rehra, Tehsil Dumariyaganj, District Siddhartha Nagar. Petitioner was served with a show cause notice dated 18.9.2007 wherein it was alleged that the petitioner had deliberately not supplied the relevant stock/distribution register as was asked for under the letter dated 13.9.2007. The petitioner was served with a charge memo dated 5.11.2007 calling upon the petitioner to submit his reply to various charges noticed. Petitioner is stated to have submitted his reply along with self attested copy of the stock register/distribution register on 14.11.2007 and also filed affidavits of eight persons who had stated that they were fully satisfied with the distribution of essential commodities by the writ petitioner. 2. The Sub-Divisional Magistrate not being satisfied with explanation so furnished proceeded to terminate the agency of the writ petitioner after recording that some other persons had also made complaint against the writ petitioner qua black marketing as well as charges of higher price than the prescribed to which there is no explanation. 3. Not being satisfied with the order so passed petitioner preferred an appeal under Clause 28 (3) of the Government Order applicable, being Appeal No. 87 of 2008. In the memo of appeal petitioner had specifically stated that absolutely no enquiry has been held and the findings recorded qua charging of excess rates and supply of lesser quantity of essential commodities then prescribed, was not established. The petitioner referred to his sale register as well as the affidavits filed in respect of his explanation for establishing that the charges as levelled against the petitioner were incorrect. Reference in that regard has also been made to the letter of one of the local MLA dated 10.9.2007. The appeal filed by the petitioner has been dismissed by the order of the Commissioner dated 23.5.2008 only after recording that the explanation was called from the writ petitioner, the explanation has been considered by the Sub-Divisional Magistrate and he has found the charges proved. Such orders of the Sub-Divisional Magistrate do not warrant any interference. 4. Counsel for the petitioner contends that the power conferred upon the Commissioner under Clause 28 (3) is wide enough to include adjudication of factual issues also. Such orders of the Sub-Divisional Magistrate do not warrant any interference. 4. Counsel for the petitioner contends that the power conferred upon the Commissioner under Clause 28 (3) is wide enough to include adjudication of factual issues also. Therefore, if the petitioner had challenged the correctness of the findings recorded by the Sub-Divisional Magistrate, such challenge made by the petitioner, which was based on material documentary evidence on record, should have been examined by the Commissioner. It is not sufficient for the Commissioner to hold that the enquiry has been done by the Sub-Divisional Magistrate and he has not found explanation satisfactory. It is, therefore, contended that the Commissioner has failed to exercise his jurisdiction qua examination of factual issues. 5. Faced with the aforesaid contention, Standing Counsel on behalf of the State respondents submits that the Commissioner has examined the matter on the basis of the records and, therefore, this Court may not interfere with the order passed by the Commissioner. 6. I have heard counsel for the parties and have gone through the records of the writ petition. 7. From the memo of appeal it is apparently clear that the petitioner had raised various factual grounds for the purposes of challenging the finding recorded by the Sub-Divisional Magistrate. He states that the stock register and sale register produced by the writ petitioner, established beyond doubt that the charges were incorrect. He also made an allegation that the enquiry has not been made in free and fair manner. All the aforesaid issues have completely been ignored by the Commissioner while deciding the appeal. He has only fallen back upon the order of the Sub-Divisional Magistrate to hold that petitioner is guilty of the charges. 8. I am of the considered opinion that the power of the Commissioner being wide enough to include examination of factual issues also, he was under obligation in the facts of the case to consider the factual pleas raised by the petitioner. The Commissioner has failed to exercise his jurisdiction to that extent while confirming the order of the Sub-Divisional Magistrate. 9. In such circumstances the order passed by the Commissioner is illegally not sustainable and is hereby quashed. 10. The appeal is restored to its original number. The Commissioner has failed to exercise his jurisdiction to that extent while confirming the order of the Sub-Divisional Magistrate. 9. In such circumstances the order passed by the Commissioner is illegally not sustainable and is hereby quashed. 10. The appeal is restored to its original number. Let the Commissioner take a fresh decision thereon, in light of the observations made, preferably within three months from the date a certified copy of this order is filed before him. 11. Till then status quo as of date in respect of the shop in question shall be maintained and the same shall abide by the final orders to be passed by the Commissioner, as indicated above. 12. Writ petition is allowed subject to the observations made herein above. ————