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2012 DIGILAW 1665 (JHR)

Suresh Kumar Sao v. State of Jharkhand

2012-11-29

APARESH KUMAR SINGH

body2012
Order Heard learned counsel for the parties. 2. Petitioner has sought for quashing of the Order contained in Memo No. 276 dated 13.3.2006 (Annexure-1) by which the licence of his Public Distribution System shop (in short PDS) was suspended and also vide Memo No. 13.6.2006 (Annexure-4) whereby the licence of the fair price shop no. 44/JRA/1985 was cancelled on the basis of the enquiry report submitted by the Enquiry Officer, Jharia Notified Area. 3. According to the petitioner, he was given a license of Public Distribution System shop under Bihar Trade Articles (Licenses Unification) Order, 1984, being license no. 44/JRA/1985 for carrying on the retail sale of edible oil, clothes, sugar, foodgrains, kerosene oil and vanaspati oil situated at Ward No. 12 at West Koiribandh, Jharia. It is submitted by counsel appearing on behalf of the petitioner that the respondent no. 4, Marketing Officer, Jharia, Dhanbad, on the complaint of 32 card-holders that the alleged PDS shop of the petitioner is lying closed for last two years, inspected the ration shop and after enquiry, had submitted his report on 30.6.2006 before the respondent no.3, Additional Collector (Supply), Dhanbad. Thereafter, vide order dated 13.3.2003, the licence of PDS shop was suspended by order of the Additional Collector (Supply), Dhanbad and the' petitioner was asked to submit his show cause within 15 days. It is submitted on behalf of the' petitioner that the petitioner in his show cause vide Annexure-2, showed his bona fide and stated that he had not violated any terms and conditions of the licence and he had also deposited the stock and sale registers and cash memo etc. for the year 2004-05 as required by the respondent no. 3. However, respondents have chosen to cancel the PDS license itself by the impugned order dated 13.6.2006 issued by the respondent no. 3. It is contention of the petitioner that the impugned order of cancellation has been passed by respondent no. 3 without giving a copy of the enquiry report to the petitioner. It is further submitted that the impugned order is itself a non-speaking and mechanical order without application of mind. He further submits that if allegation at all is assumed to be true, it is related to only kerosene and wheat but entire PDS license of the shop has been cancelled on the alleged allegation. 4. The respondent-State has appeared and filed their counter affidavit. He further submits that if allegation at all is assumed to be true, it is related to only kerosene and wheat but entire PDS license of the shop has been cancelled on the alleged allegation. 4. The respondent-State has appeared and filed their counter affidavit. They have relied upon the report of Marketing Officer, respondent no. 4 and submitted that the complaints were made against the petitioner's shop by certain card-holders that by putting forged L.T.I. and signature on the sale register/cash memo, the petitioner/licensee has shown that he has distributed essential commodities amongst the card-holders. The respondent further states that after the report of Marketing Officer, Jharia Notified, Area, the Additional District Magistrate (Supply) also conducted a detailed enquiry in respect of the said shop. After such exercise, the petitioner was asked to show cause as to why his license be not cancelled and in the meantime license was put under suspension with immediate effect. It is further submitted that after receipt of the petitioner's show cause, the impugned order has been passed, which is legal and proper in the eyes of law. For that, opportunity has been given to the petitioner to show cause by following the principle of natural justice. 5. The petitioner has filed rejoinder affidavit wherein he has denied such charges as have been relied upon by the respondents by enclosing a copy of the enquiry report in the counter affidavit. Counsel for the petitioner also submits that the said Marketing Officer was himself placed under suspension subsequently for indulging in serious charges of negligence in duty and connivance in black- marketing by Annexure-7 dated 22.6.2007 on the complaint of the local M.L.A. Counsel for the petitioner reiterated that enquiry report, which has been brought on record by way of counter affidavit, was never served upon him and categorical statement made in the writ petition at para-17 to that effect has not been denied by the respondent. 6. I have heard learned counsel for the parties at length and gone through the relevant materials on record. On the submission of the parties and the materials brought on record, it appears that vide order dated 13.3.2006, the license of the PDS shop in the name of the petitioner was put under suspension while asking him to show cause as to why it should not be cancelled. On the submission of the parties and the materials brought on record, it appears that vide order dated 13.3.2006, the license of the PDS shop in the name of the petitioner was put under suspension while asking him to show cause as to why it should not be cancelled. However, the impugned show cause does not reveal that there is either reference of the report of the Marketing Officer or it has been annexed to the said show cause notice to enable the petitioner to reply over the same. It further appears that the Additional Collector (Supply), Dhanbad, conducted another enquiry before issuance of show cause, which again has not been furnished to the petitioner in order to enable to meet the allegations, which are serious in nature alleging the acts of blackmarketing and forging in stock and sale register and cash memo etc. The petitioner was thus precluded from adequately defending himself in the absence of the enquiry report, which contained the allegation and formed basis of the impugned show cause and order of cancellation. The order of cancellation itself does not contain any reason as it relies upon the enquiry report of the Marketing Officer dated 13.3.2006 as also the subsequent report dated 13.6.2006, which were not served upon the petitioner. The impugned order appears to have been passed in mechanical manner without application of judicious mind without adequate opportunity given to the petitioner and without following the principle of natural justice by providing him copy of the enquiry report relied by the respondent in passing the order of cancellation. 7. In the wake of aforesaid facts and circumstances of the case as detailed hereinabove, it appears that the decision making process suffers from infirmity as principle of natural justice stands violated and the order is non-speaking order passed in mechanical manner, which cannot be sustained in the eyes of law. The impugned orders are quashed. 8. However, respondents are at liberty to pass fresh order after giving opportunity to the petitioner, alongwith report relied upon by the respondents containing allegation against him. 9. Accordingly, the writ petition is allowed in the aforesaid terms.