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Allahabad High Court · body

2011 DIGILAW 2109 (ALL)

KANSHI SINGH v. STATE OF U. P.

2011-09-09

SUNIL HALI

body2011
JUDGMENT Hon’ble Sunil Hali, J.—In exercise of power conferred under Public Distribution System Order 2001, (hereinafter referred to as Order 2001) State Government has issued notification dated 20.12.2004 namely the UP Essential Commodities Distribution Order 2004, wherein the procedure has been provided for appointment of a fair price shop dealer. The petitioner came to be appointed as Fair Price Shop dealer after following the said provisions. According to Order 2001, A Fair Price Shop Dealer would mean a person and includes a Co-operative Society or a Corporation or a company of a State Government or a Gram Panchayat or any other body in whose name a shop has been licensed to distribute the essential commodities under the Public Distribution System. Clause 7 there of provides for licensing and authorisation to the fair price shop for distribution of the essential commodities. State Government is authorised to issue an order regulating the sale and distribution of the essential commodities for which license is required to be granted to the shop owner. The terms of license lay down duties and responsibilities of the fair price shop owner. Para 5 of the Annexe, PDS Order, 2001 referred to in Clause 7 of the said order reads as under: “5. Licensing: State Governments shall issue an order under section 3 of the Act for regulating the sale and distribution of the essential commodities. The licenses to the fair price shop owner shall be issued under the said order and shall lay down the duties and responsibilities of the fair price shop owner. Licensing: State Governments shall issue an order under section 3 of the Act for regulating the sale and distribution of the essential commodities. The licenses to the fair price shop owner shall be issued under the said order and shall lay down the duties and responsibilities of the fair price shop owner. The responsibilities and duties of fair price shop owners shall include, inter alia: (i) sale of essential commodities as per the entitlement of ration card holders at the retail issue prices fixed by the concerned State Government under the Public Distribution System; (ii) display of information on a notice at a prominent place in the shop on daily basis regarding (a) list of BPL and Antodaya beneficiaries, (b) entitlement of essential commodities, (c) scale of issue, (d) retain issue prices, (e) timings of opening and closing of the fair price shop, (f) stock of essential commodities received during the month, (g) opening and closing stock of essential commodities and (h) the authority for redressal of grievances/ lodging complaints with respect to quality and quantity of essential commodities under the Public Distribution System; (iii) maintenance of records of ration card holders (APL, BPL and Antyodaya), stock register, issue or sale register; (iv) furnishing of copies of specified documents, namely, ration card register, stock register, sale register to the office of the Gram Panchayat or Nagar Palika or Vigilance Committee or any other body authorized by State Governments for the purpose; (v) display of samples of foodgrains being supplied through the fair price shop; (vi) production of books and records relating to the allotment and distribution of essential commodities to the inspecting agency and furnishing of such information as may be called for by the designated authority; (vii) accountal of the actual distribution of essential commodities and the balance stock at the end of the month to the designated authority of the concerned State Government with a copy to the Gram Panchayat; (viii) opening and closing of the fair price shop as per the prescribed timings displayed on the notice board.” 2. The condition of the license also ensures the State Government’s power to monitor the funding of the fair price shop which includes periodical check up by the officers nominated in this behalf. Proper authority to hold enquiry is also defined under the regulations. 3. The condition of the license also ensures the State Government’s power to monitor the funding of the fair price shop which includes periodical check up by the officers nominated in this behalf. Proper authority to hold enquiry is also defined under the regulations. 3. A complaint was received against the petitioner that stock which were entrusted to him on inspection were found to be deficient. Essential commodities were not distributed amongst the card holders entitled to receive the same. An enquiry was conducted by the officers of the department who submitted their report confirming the allegations levelled against the petitioner to be correct. In pursuance to the show cause notice issued to the petitioner he was asked regarding shortage of essential commodities in the stock register which on physical verification was found that there was shortage of 3.40 qw of sugar, 7.50 qw of wheat, 8.00 qw of rice whereas the dealer has lifted 3.50 qw of sugar, 20.90 qw of wheat and 20 kw of rice from the godown. In his explanation the petitioner stated that he admitted lifting of the quantity of the stocks mentioned herein above but stated that the said stock were kept with his brother. The brother of the petitioner had lifted the stock and refused to return the same. Other allegations were denied by him. On the receipt of the said explanation submitted by the petitioner the same was found to be unsatisfactory and as a result of which his license was cancelled vide order dated 23.12.2005 by Assistant Collector, Etah. An appeal was preferred against the said order which stood dismissed vide order dated 22.6.2006. This order is subject-matter of challenge before this Court. 4. Status of the petitioner as a shop dealer is like an ‘Agent’ who works on behalf of the ‘Principal’ i.e. the State Government. In this behalf an agreement is executed by the fair price shop dealer with the Government. Any violation of the terms of the agreement can be enforced by common law remedy. However, where there is violation of the terms of the licence same can be questioned under the writ jurisdiction. The question that arise for consideration in this case is as to whether the licence of the petitioner has been cancelled in accordance with the rules of natural justice. However, where there is violation of the terms of the licence same can be questioned under the writ jurisdiction. The question that arise for consideration in this case is as to whether the licence of the petitioner has been cancelled in accordance with the rules of natural justice. One of the condition referred under the licence is that petitioner is required to maintain the account for the actual distribution of the essential commodities and balance stocks at the end of the month. Allegations against the petitioner is that he was engaged in the distribution of the essential commodities under the Public Distribution System by indulging diversion of the stock from the godown of the fair price shop. Diversion is defined as unauthorised movement or delivery of essential commodities released from the godown but not reaching intended beneficiaries under Public Distribution System. 5. Allegations per se was that the petitioner had by a process of diversion lifted the stock from the godown and kept it with his brother’s house as a result of which the said stocks could not be distributed to the beneficiaries. 6. The explanation of the petitioner that the stocks were lifted by him but had kept it at his brother’s residence, points towards only one fact that the actual stocks lifted by the petitioner were not found at the time of inspection in his shop. He has admitted that the stocks were deficient. However, he had denied that he had misappropriated the same. On the basis of his reply, respondents proceeded to cancel his shop. The question that arise in this behalf as to whether any right of the petitioner has been violated while issuing the impugned order or not. Admittedly, the terms and conditions in the licence have been violated by the petitioner. On his own showing he has admitted that the stocks were found deficient in his shop by stating that the same were kept by him at his brother’s residence. The terms and conditions of the licence stood clearly violated. 7. Contention of learned counsel for the petitioner that neither enquiry has been conducted in accordance with the rules of natural justice nor he has been given opportunity of being heard cannot be accepted. The terms and conditions of the licence stood clearly violated. 7. Contention of learned counsel for the petitioner that neither enquiry has been conducted in accordance with the rules of natural justice nor he has been given opportunity of being heard cannot be accepted. Nature of enquiry under Public Distribution System Order 2001 or under the UP Essential Commodities Distribution Order 2004 do not contemplate as to what procedure is required to be followed in holding of an enquiry in respect of cancellation of licence. Where the rules are silent, principles of natural justice are required to be followed. Rules of natural justice contemplates that a person must not be condemned unheard. Reasonable opportunity of being heard must be provided to him. Reasonable opportunity contemplates the following requirement : (a) nature of charges sought to be proved against the person must be disclosed; (b) he must be given opportunity of contesting allegations levelled against him in the charge-sheet; (c) if the charges are not accompanied by supportive evidence then the same may be proved by leading evidence in this behalf; (d) where the charge-sheet is accompanied by supportive evidence then explanation be sought from the person to rebut the said evidence and; (e) where the supportive evidence is based on record no witnesses are required to be examined in this behalf. 8. These principles would apply in all such domestic enquiry where the rules are silent. By applying this principle in the aforesaid case, it be seen that the petitioner has admitted that stocks were lifted by him but were found deficient as the same by a process of diversion stocked in the house of his brother. On this admission of the petitioner no further enquiry was required to be conducted in this behalf. 9. Contention of learned counsel for the petitioner that he has not been given an opportunity of being heard while passing of the impugned order of cancellation is without merit. 10. The law relating to rules of natural justice has undergone drastic change. The law is well settled that the rules of natural justice are not a straight -jacket formula. The facts of each case have to be seen in order to determine whether the principles of natural justice have been violated or not. 10. The law relating to rules of natural justice has undergone drastic change. The law is well settled that the rules of natural justice are not a straight -jacket formula. The facts of each case have to be seen in order to determine whether the principles of natural justice have been violated or not. Petitioner is required to show that actual prejudice has been caused to him on account of non observation of the rules of natural justice. Unless actual prejudice is shown there is no violation of the rules of natural justice. 11. In the present case, petitioner on his own showing had admitted that the essential commodities by a process of diversion have been stocked in the house of his brother as a result of which shortage were detected in his shop. 12. In the light of the aforesaid discussion, it be seen that in the present case, the impugned order has been passed strict in consonance with the rules of fair play and no interference in this behalf is required by this Court. 13. I find no force in the writ petition. The writ petition is dismissed without costs. ——————