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2011 DIGILAW 1871 (PAT)

Kamal Singh v. State of Bihar

2011-09-02

JYOTI SARAN

body2011
ORDER The writ petition has been filed questioning the order dated 24.4.2009 (Annexure-1) whereby the appeal preferred by the petitioner bearing Appeal No.10 of 2008-09 has been dismissed by the appellate Authority and the order dated 10.11.2008 passed by the Sub Divisional Officer-cum-the Licensing Authority, Jagdishpur, District Bhojpur as contained in Annexure-5 to the writ petition, cancelling the licence of the petitioner granted to him under the Public distribution system (Control) Order, 2001 (hereinafter referred to as ‘the Order’), has been upheld. The petitioner has also challenged the order dated 9.10.2009 as contained in Annexure-2 to the writ petition whereby his review petition was dismissed by the Appellate Authority being the District Magistrate, Bhojpur. 2. The facts of the case, in brief, is that on a public complaint made by the local villagers, an inquiry was conducted by the Block Supply Officer, Jagdishpur, who submitted his report before the Licensing Authority, i.e. the Sub Divisional Officer, Jagdishpur vide memo no.379 dated 16.9.2008, who in turn issued a show cause notice to the petitioner to show cause as to why his license be not cancelled and first information report be not instituted for the alleged charges of making axcess realization of the price from the card holders and of making lesser supply. The Licensing Authority, upon consideration of the reply filed by the petitioner in response to the show cause notice, rejected the same as being not satisfactory and by order bearing memo no.66 dated 20.9.2008, the licence of the petitioner was suspended. By the same memo the petitioner was also directed to show cause against proposed cancellation. 3. The matter was thereafter referred to the Dealers Selection Committee, Bhojpur (hereinafter referred to as ‘the committee’) in terms of the provisions of Clause 7(v) of the Order for consideration. Even while the matter was pending consideration before the Committee, the Licensing Authority i.e. the Sub Divisional Officer, Jagdishpur, by order dated 10.11.2008 as contained in Annexure-5 to the writ petition, issued the order of cancellation of the licence of the petitioner. 4. Even while the matter was pending consideration before the Committee, the Licensing Authority i.e. the Sub Divisional Officer, Jagdishpur, by order dated 10.11.2008 as contained in Annexure-5 to the writ petition, issued the order of cancellation of the licence of the petitioner. 4. The petitioner, being aggrieved by the said order, preferred appeal giving rise to Appeal Case No.10 of 2008-09 before the Collector, Bhojpur at Ara, who being the Appellate Authority under the Order, by the impugned order dated 24.4.2009 placed at Annexure-1 to the writ petition, dismissed the appeal of the petitioner and upheld the order of cancellation of the licence. The review application filed by the petitioner met the same fate when it was dismissed by order dated 9.10.2009. 5. It is necessary to mention here that as the Licensing Authority had referred the matter to the Committee for consideration in terms of Clause 7(v) of the Order, the Committee in its proceeding dated 1.12.2008 placed at Annexure-3, recommended for revocation of the suspension of the licence of the petitioner with a “warning”. The recommendation is at Agenda No.18 of the Minutes of Meeting of the Committee placed at Annexure-3. It is in these circumstances, that the present writ petitioner came to be filed. 6. Learned counsel for the petitioner, while referring to the judicial pronouncement of this court rendered in the case of Pradhuman Choudhary Vs. The State of Bihar reported in 2010 (4) PLJR 178 , has raised a very short issue. He submits that in view of the law laid down by this court, the order of cancellation dated 10.11.2008 as contained in Annexure-5 together with the order passed in appeal and on the review petition, become unsustainable. He submits that once the Licensing Authority being conscious of the powers vested under the Order have decided to issue order of suspension of the licence of the petitioner in exercise of the power vested under Clause7(ii) of the Order, he can not proceed to cancel the licence of the petitioner and impose a second punishment for the same offence. He submits that once the Licensing Authority being conscious of the powers vested under the Order have decided to issue order of suspension of the licence of the petitioner in exercise of the power vested under Clause7(ii) of the Order, he can not proceed to cancel the licence of the petitioner and impose a second punishment for the same offence. He submits that this issue has been deliberated upon by this Court in the case of Pradhuman Choudhary (supra) and upon consideration of various provisions of the Order, the Bench has come to a conclusion that the power vests in the Licensing Authority to decide either to impose punishment of suspension or to issue order of cancellation and once having decided to issue an order of suspension, he can not follow it up by issuing an order of cancellation on same charges. It is contended that in view of the law laid down by this court in the case of Pradhuman Choudhary (supra), the orders are not tenable. 7. Mr. R.K. Sinha, learned counsel appearing for the State, opposes the submissions of the learned counsel for the petitioner and submits that the charges levelled against the petitioner are so grave that led to cancellation of the licence of the petitioner hence, the Statutory Authorities have passed the orders in accordance with law. 8. I have heard the learned counsel for the parties and perused the materials available on the records of the proceedings. 9. The Order was notified by the State of Bihar vide Notification No.GSR 01/ dated 20.2.2007. Clause 7(ii) of the Order in no uncertain terms enables the Licensing Authority to either suspend or cancel the licence and the option is vested in him to choose either of the punishment considering the gravity of the charges. 10. It is a matter of record that considering the charges and the report of the Block Supply Officer, Jagdishpur, the Licensing Authority decided to issue orders of suspension vide order dated 20.9.2008 placed at Annexure-4 series to the writ petition. Having issued the said orders, the Licensing Authority even forwarded the records for consideration by the Committee, and while the matter was pending consideration before them, the impugned order of cancellation was passed on 10.11.2008. Having issued the said orders, the Licensing Authority even forwarded the records for consideration by the Committee, and while the matter was pending consideration before them, the impugned order of cancellation was passed on 10.11.2008. It is again a matter of record that the Committee, upon consideration of the gravity of charges and the report of the Block Supply Officer, came to a conclusion that the order of suspension of the licence of the petitioner be revoked with a warning. The Licensing Authority, without waiting for the decision of the Committee, proceeded to issue order of cancellation by the impugned order dated 10.11.2008 and which order of cancellation has simply been affirmed by the Appellate Authority under its order dated 24.4.2009 even while taking note of the decision of the Committee that the case of the petitioner deserved revocation of suspension. 11. Considering the circumstances aforesaid, where the Committee upon consideration of the charges had arrived at a conclusion that the suspension order of the petitioner could be revoked with a ‘warning’, it is apparent that the Committee itself was of the opinion that the charges were not as grave and the Licensing Authority without waiting for the decision of the Committee on the issue and without expressing any opinion as to the reasons for imposing the extreme punishment of cancellation, has proceeded to pass the impugned order in a routine manner. The order of the Appellate Authority on appeal and review is equally mechanical. That being the position and considering judicial pronouncement in the case of Pradhuman Choudhary (supra), the impugned order dated 10.11.2008 passed by the Licensing Authority as contained in Annexure-5 together with the order passed by the Appellate Authority dated 24.4.2009 as contained in Annexure-1 and the order passed on review dated 9.10.2009 as contained in Annexures-2 to the writ petition, can not be sustained and are accordingly quashed and set aside. 12. The writ petition is allowed.