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2009 DIGILAW 767 (GUJ)

Jaipalsinh Pratapsinh Solanki v. State of Gujarat

2009-12-21

M.S.SHAH, SUDHANSU JYOTI MUKHOPADHAYA

body2009
Judgment Mohit S. Shah, J.—This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 11.2.2008 of the learned Single Judge dismissing the writ petition challenging the order dated 29.6.1996 of the State Government. By the said order, the State Government dismissed the revision application against the order of the Collector, Panchmahals at Godhra and confirmed the order dated 21.9.1994 of the District Supply Officer, Godhra cancelling the fair-price shop licence for distribution of kerosene and forfeiting the deposit of Rs. 750/-. 2. The appellant was granted fair-price shop licence for distributing kerosene. On 30.6.1994 and also on 1/2.7.1994, there was a surprise checking of the appellant’s fair-price shop by the checking squad. As many as 21 irregularities were detected. The appellant was given a show-cause notice dated 30.7.1994 calling upon the appellant to show cause why the licence should not be cancelled. The appellant submitted his reply dated 16.8.1994. The District Supply Officer passed order dated 21.9.1994 cancelling the licence and forfeiting the deposit of Rs. 750/-. The District Collector dismissed the appeal on 9.11.1994. The State Government dismissed the revision by order dated 29.6.1996. The writ petition came to be dismissed by the learned Single Judge. Hence this appeal. 3. Mr. Mangukiya, learned Counsel for the appellant submitted that the appellant was not present when the surprise checking took place on 30.6.1994 because he was busy securing admission for his daughter at Gandhinagar during the period from 27 to 30th June 1994. With a view to see that the card holders may not have to face difficulties on account of non-availability of the appellant, the card holders were supplied kerosene through the appellant’s servant and the details were recorded in their respective cards. A list of such supplies was prepared and produced before the Inspecting Officer at the time of inspection. However, the authorities did not consider these findings properly and gave the findings against the appellant. It is submitted that apart from the above defence, the appellant had also submitted in the reply to the show cause notice that in order to maintain social relations, the appellant used to supply kerosene to card holders in excess of their entitlement, but no default was committed with any mala fide intention. It is submitted that apart from the above defence, the appellant had also submitted in the reply to the show cause notice that in order to maintain social relations, the appellant used to supply kerosene to card holders in excess of their entitlement, but no default was committed with any mala fide intention. It is further submitted that the authorities relied on the statements of card holders without supplying the copies thereof to the appellant and, therefore, there was violation of the principles of natural justice. 4. On the other hand, Ms. Trusha Patel, learned AGP opposed the appeal and submitted that three departmental authorities had given concurrent findings of fact against the appellant and the learned Single Judge having found no substance in the writ petition under Article 226 of the Constitution, this Court would not re-appreciate the material on record for arriving at different conclusions. It is also submitted that there were many admitted irregularities also. For instance, the appellant had admitted in his reply dated 16.8.1994 that mistakes at item Nos. 10 to 12 of the show cause notice had occurred due to slip of pen or due to heavy rush of card holders without any mala fide intention. 5. Having heard the learned Counsel for the parties at length, we find that the appellant had admitted the following irregularities, though his defence was that they were mere slips of pen or mistake on account of heavy rush of card holders :— “10. From the stock register verification, it has been found that during the month of February 94, you received 7000 litres of kerosene whereas sale is shown at 7200 litres. Thus, false bills for 200 litres have been prepared. Thus, proper accounts are not maintained. 11. Stock of kerosene of 2000 litres is shown on the stock register as on 8.2.94 whereas in total 2400 litres of kerosene is shown and after deducting 800 litres of sale, the closing balance of 1600 litres is shown. Thus, excess of 200 litres kerosene has been seen and therefore, it is proved that the accounts are not maintained rightly. 12. Thus, excess of 200 litres kerosene has been seen and therefore, it is proved that the accounts are not maintained rightly. 12. In the bill book of sale in the bill No. 257, 358 and 362, particulars of name of the card holder and village have not been written and, therefore, total quantity of 25 litres has been disposed off wrongly by preparing false bills without demanding by the card holders.” 6. In view of the fact that the above irregularities were admitted by the appellant, the explanation that they were slips of pen has come once too often. Besides the said defence is also required to be examined in light of the findings in respect of the other irregularities, some of which, are as under :— “3. The sale of 500 litres of kerosene has been mentioned in your reply dated 30.6.94, bills in respect of which sale are not prepared nor the stock is indicated in the stock register. Thus, up to date records are not being maintained and it is proved that the said quantity of kerosene was sold in open market instead of supplying the same to the card holders. 4. Sale of 500 litres of kerosene is stated on the stock register as on 27.6.94 whereas bills prepared are in respect of 190 litres only. Therefore, it is proved that 310 litres of kerosene have been disposed off in open market instead of supplying the same to the card holders. 5. Sale of 300 litres and 100 litres of kerosene is mentioned in the stock register for 28.6.94 and 29.6.94, bills in respect of which sale are also not prepared and thus, this quantity of 400 litres of kerosene has been disposed off in the open market at high price. 7. As regards the contention that copies of statements of card holders were not supplied to the appellant, the above irregularities Nos. 3, 4 and 5 were not based on statements of card holders, but on the basis of the appellant’s own record i.e. stock register and bill books. 8. Even as regards other irregularities, findings for which were based on statements of card holders, the appellant not having asked for copies of such statements, the appellant cannot be permitted to make a grievance about their non-supply at this stage. 8. Even as regards other irregularities, findings for which were based on statements of card holders, the appellant not having asked for copies of such statements, the appellant cannot be permitted to make a grievance about their non-supply at this stage. On the basis of the decision of the Apex Court in State Bank of Patiala vs. S.K. Sharma, AIR 1996 SC 1669 , this Court has held in a similar case decided on 25.11.2009 (LPA No. 2285 of 2009) that even if there is a violation of a procedural rule of a mandatory character, it has to be ascertained whether rule is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of penalty cannot be set aside on the ground of said violation. 9. The principle of natural justice that the appellant was required to be given copies of statements of card holders is a principle conceived in the interest of the appellant and, therefore, when the appellant did not choose to demand copies of statements of card holders referred to in the show cause notice, either at the hearing before the District Supply officer, the Collector or the State Government, the appellant cannot be permitted to make a grievance later on. The appellant must be treated to have waived the violation, if any, of the said principle of natural justice which was conceived in his interest. 10. In any view of the matter, when there were as many as 21 irregularities found to have been committed by the appellant, some of which were admitted by the appellant, as indicated above, no fault can be found with the impugned orders of the authorities cancelling the appellant’s retail fair price shop licence for distribution of kerosene and forfeiting the deposit of Rs. 750/-. 11. In view of the above discussion, the appeal is dismissed. Since the appeal is dismissed, the civil application is also dismissed.