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2013 DIGILAW 167 (GAU)

Tapan Kumar Saha v. State of Assam

2013-03-08

B.K.SHARMA

body2013
JUDGMENT B.K. Sharma, J. 1. Heard Ms. D. Borgohain, learned counsel for the petitioner. Also heard Mr. M. Bhagawati, learned State Counsel as well as Mr. S. Khound, learned Standing Counsel, BTC. By means of this writ petition, the petitioner has challenged the Annexure-17 communication dated 24.2.2012 enclosing there with the enquiry report in respect of Fair Price Shop licence of the petitioner (PDS retain agent). By the said enquiry report submitted by the Secretary, BTC, it has been opined that the dealership of the petitioner cannot be revived. Attaching finality to the said report, the secretary, BTC has forwarded the impugned letter dated 24.2.2012 to the petitioner. 2. Prior to the aforesaid communication, the retail dealing licence issued to the petitioner under APDA Order, 1982 was cancelled by Annexure-7 order dated 13.2.2009. Such cancellation was preceded by Annexure-5 show cause notice dated 25.8.2008 and the petitioner's reply thereto. In the show cause notice, it was alleged that while serving as a retain agent, the service of the petitioner was not regular and he regularly harassed the PDS consumers. It was also alleged that he had left the particular village (Failaguri) and his shop remained closed since long time for which the PDS consumers had been suffering immensely. In reply to the said show cause notice, the petitioner submitted that he had been running the Fair Price Shop with due diligence and that it is at the behest of a few consumers, the action had been initiated. 3. In the order of cancellation dated 13.2.2009, it was alleged that the petitioner did not extend good relationship with the consumers and used to harass them. Absence was also alleged depriving the consumers to get the PDS items. 4. The aforesaid order was put to challenge by filing an appeal. However, the appeal was rejected by order dated 17.12.2009, challenging both the orders, the petitioner had filed a writ petition being WP(C) No. 5891/2009 and the said writ petition was disposed of by order dated 3.2.2011 setting aside both the orders on the ground of violation of principles of natural justice, inasmuch as, the report that was made use of towards passing the impugned order of cancellation, was never furnished to the petitioner entitling him to have his say in respect of the said report. For a ready reference, the relevant portion of the order is quoted below:- It appears from the materials made available on record that the licensing authority vide order dated 7th March, 2008 suspended the license issued to the petitioner under the 1982 Control Orders. An enquiry was thereafter, conducted into the allegation leveled against the petitioner. The Inspector, Food and Civil Supplies on 6th June, 2008 submitted the report with a finding that the petitioner has not violated any terms and conditions of the license. The said report, however, has subsequently been changed by the Inspector by submitting another report dated 14th July, 2008, wherein it has been recorded that the petitioner has violated the terms and conditions of the license, as he has kept the Fair Price Sop closed. As noticed above, the subsequent enquiry, on the basis of which report dated 14th July, 2008 was submitted, was conducted without any notice to the petitioner and in his absence. The impugned order dated 13th February, 2009 passed by the Assistant Director reveals that the said order was passed based on the subsequent report of the Inspector of Food and Civil Supplies, which report was submitted by the Inspector pursuant to an enquiry conducted behind the back of the petitioner and even without furnishing the copy of the enquiry report dated 14th July, 2008. The impugned order dated 13th February, 2009 also does not reveal the manner in which or which of the terms and conditions of the license have been violated by the petitioner, though it has been stated that the petitioner has also violated the terms and conditions of the license. The appellate authority while passing the impugned order dated 17th December, 2009 has not taken into consideration those aspects of the matter. That being the position, the impugned orders dated 13th February, 2009 and 17th December, 2009 are set aside. The matter is remitted to the licensing authority to decide the proceeding initiated pursuant to the show cause notice issued on 25th August, 2008 after making necessary enquiry and by allowing the petitioner to participate in such enquiry. The said process is directed to be completed within a period of 7 (seven) weeks from today. 5. The matter is remitted to the licensing authority to decide the proceeding initiated pursuant to the show cause notice issued on 25th August, 2008 after making necessary enquiry and by allowing the petitioner to participate in such enquiry. The said process is directed to be completed within a period of 7 (seven) weeks from today. 5. By the aforesaid order, while setting aside the impugned orders, the matter was remanded back to the Licencing Authority pursuant to the show cause notice issued on 25.8.2008 after making necessary enquiry and allowing the petitioner to participate in such enquiry. 6. From the above, what is seen is that the matter was to be looked into de novo from the stage of issuance of show cause notice. As noted above, in response to the show cause notice, the petitioner had submitted his reply. By the aforesaid order of this Court, it was provided that the petitioner should be furnished with the enquiry reports and also opportunity of being heard. Instead of following the said procedure, the Secretary, BTC conducted further enquiry inviting villagers and also the petitioner. 7. Not only he had conducted the enquiry but also justified the cancellation of licence of the petitioner. In the enquiry report, the adverse findings against the petitioner are that the shop remained closed for 20 days for which public complaint was lodged. This fact was disclosed by none other than the petitioner. In the impugned enquiry report, the Secretary, BTC has also referred to the purported statement of 16 number of villagers alleging non-distribution of PDS items by the petitioner and distribution of materials in small quantities in several lots. The enquiry report has adversely commented upon the petitioner on the ground that he could not produce any one of the customers in his favour. 8. From the materials on record it appears that the petitioner's Fair Price Shop has 1844 number of consumers. It has also been stated in the writ petition that out of 16 complainants, about 9 are card holders. Merely because, 16 villagers had deposed against the petitioner, the authority could not have cancelled the licence ignoring the version of 1844 No. of consumers. As regard the absence for 20 days, it is the petitioner who himself deposed before the authority that he had to remain absent for 20 days due to personal reasons. 9. Merely because, 16 villagers had deposed against the petitioner, the authority could not have cancelled the licence ignoring the version of 1844 No. of consumers. As regard the absence for 20 days, it is the petitioner who himself deposed before the authority that he had to remain absent for 20 days due to personal reasons. 9. The authority has commented adversely against the petitioner as he did not produce any consumer in his favour. The said position ought to have been looked into from the point of view that none except the said 16 villagers had complained against the petitioner. Above part, there is wholesome deviation from the stand of the respondents as reflected in the impugned show cause notice, to which the petitioner has furnished his reply. 10. This Court while remanding the matter back to the authority directed for de novo proceeding from the stage of impugned show cause notice. Instead, the authority conducted a fresh enquiry and passed the impugned order. The Secretary, BTC did everything by himself i.e. conducting the enquiry and on the basis of the said enquiry also justified the cancellation of the licence of the petitioner. Such process followed by the Secretary, BTC is not legally valid. 11. For all the aforesaid reasons, I am inclined to accept the writ petition and accordingly the impugned communication dated 242.2.2012 along with the report enclosed therewith, stands set aside and quashed. The authority shall restore the Fair Price Shop Licence to the petitioner immediately. Writ petition is allowed, leaving the parties to bear their own costs. Petition allowed.