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2013 DIGILAW 363 (ALL)

Pramod Kumar Yadav v. State of U. P. and Others

2013-01-31

SUNITA AGARWAL

body2013
Sunita Agarwal, J.— Heard Shri O.P. Chaube and Shri A.K. Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing on behalf of respondents. This writ petition is directed against the order dated 3.10.2009 passed by the S.D.M. Mauranipur, District Jhansi and the order dated 27.3.2010 passed by the Commissioner Jhansi, Division, Jhansi. Petitioner also challenged the notice dated 16.9.2009 issued by the S.D.M. whereby fair price shop agreement of the petitioner was suspended. The brief facts giving rise to the present petition are that fair price shop was allotted to the petitioner in the year 1995. The case of the petitioner is that he has been running the shop and there has never been any complaint against him through out the said period. For the first time show cause notice dated 11.11.2008 along with some charges was communicated to him to which he submitted his reply/explanation dated 31.12.2008. In his reply submitted on 31.12.2008 he informed the respondent authority that charges mentioned in the notice dated 11.11.2008 are concocted story. The persons whose names are mentioned in the show cause notice and who made complaint against the petitioner for irregularity in distribution of food grains are the persons having grudge against the petitioner and gave challenge earlier to the petitioner that his licence for fair price shop be cancelled. Petitioner has not committed any irregularity. On the date when the inspection was done petitioner was not feeling well so he went to local hospital for his treatment. After the reply was submitted by the petitioner and order dated 16.9.2009 was passed whereby fair price shop licence of the petitioner was suspended and the petitioner was called upon to submit his reply. In the suspension order dated 16.9.2009 it was mentioned that explanation submitted by the petitioner dated 31.12.2008 is not supported by any documentary evidence. Moreover as per report of the Incharge Inspector, weight and measure, Mau, Ranipur dated 6.9.2009, on the day of camp i.e.6.2.2009 when he reached shop was found closed. He met with the father of the petitioner on the spot who provided him distribution/sale register wherein entries dated 6.2.2009 of 53 cardholders were found. Out of these four cardholders named therein informed that they never went to collect the food grains. No stock verification was done on the said date as the petitioner's father did not show the stock register. Out of these four cardholders named therein informed that they never went to collect the food grains. No stock verification was done on the said date as the petitioner's father did not show the stock register. The reply to notice dated 16.9.2009 was submitted by the petitioner enclosing affidavits of persons who were mentioned as complainant in the order of suspension. Learned counsel for the petitioner submits that reply submitted by him to the show cause notice dated 11.11.2008 and 16.9.2009 was not properly considered. The proceedings of suspension and cancellation of the fair price were initiated on the complaint of some private person who had grudge with the petitioner. Petitioner is running shop since the year 1995 and there has never been any complaint regarding distribution. The private persons whose name mentioned in the show cause notice dated 11.11.2008 had not submitted any affidavit in support of their claim to substantiate that their complaints are not fictitious. This apart the report of Incharge Inspector, weight and measure was never supplied to the petitioner. The said report was taken into consideration exparte and explanation given by the petitioner in his report was not considered properly. He vehemently submitted that petitioner had informed in his reply that concerned officer did not reach his shop in time on 6.2.2009. The said date was fixed by the District Magistrate for distribution of food grains. For the purpose, information was given by beat of drums in the village. The officers who were deputed to make inspection reached the petitioner's shop after 4 P.M. whereas petitioner was engaged in distribution of food grains from 10 A.M. onwards. The villagers were in hurry and they had to go for their daily work as such petitioner could not have waited for the officers to reach the shop. He distributed the food grains and made proper entries in the distribution register. Learned counsel for the petitioner further submits that after the shop was closed, the officers concerned reached the spot and met his father who had shown the distribution register. He further submitted that in the order of suspension it has not been mentioned that petitioner's father did not show the stock register dated 6.9.2009 lying in the shop to the authorities to verify the same rather the allegation is that stock verification was not done, for which petitioner cannot be held responsible. He further submitted that in the order of suspension it has not been mentioned that petitioner's father did not show the stock register dated 6.9.2009 lying in the shop to the authorities to verify the same rather the allegation is that stock verification was not done, for which petitioner cannot be held responsible. He further submitted that report dated 6.2.2009 was not supplied to him at any point of time. The allegation against the petitioner is that he did not distribute the food grains in front of the officer concerned and in case officers did not reach the shop he ought to have informed the officers and the order of cancellation was passed. The Sub-Divisional Magistrate in its order dated 3.10.2009 passed the order of cancellation on the grounds that no documentary evidence was submitted by the petitioner in his reply to the first notice dated 11.11.2008.Further on 6.2.2009, the day of camp petitioner did not distribute the food grains in presence of the officers. On the basis of report dated 6.2.2009 of the Inspecting Officer that there were irregularities in distribution of food grains. The affidavits submitted by the petitioner along with reply to the second show cause notice dated 16.9.2009 were not considered and it was concluded that they are not sufficient. Learned counsel for the petitioner vehemently relied upon the Government Order dated 23.4.2009 and submits that the said Government Order provides that in case complaints are filed by the private person it is necessary for the District Supply Officer to take affidavit of those persons and examine the same in order to curb the fictitious complaint. The said procedure having not been followed by the concerned officer the suspension order dated 16.9.2009 and cancellation order can not be sustained. The appellate authority simply affirmed the order of cancellation passed by the Sub-Divisional Magistrate without examining the matter. The grounds taken in the memo of appeal to assail the cancellation order had not been adverted to. Learned Standing Counsel appearing for the respondent placed reliance on the averments made in the counter affidavit and submitted that the inquiry was made by Supply Inspector on 5.11.2008 on the complaint made against the petitioner on Tehsil Diwas. The cardholders made a complaint and inspection was made. Learned Standing Counsel appearing for the respondent placed reliance on the averments made in the counter affidavit and submitted that the inquiry was made by Supply Inspector on 5.11.2008 on the complaint made against the petitioner on Tehsil Diwas. The cardholders made a complaint and inspection was made. He further relied upon the paragraph-16 of the counter affidavit and submits that petitioner refused to show the stock on the date of inspection. He further submits that orders impugned are based on inquiry conducted by the officer and they do not call for any interference by this court under Article 226 of the Constitution of India. Considered the submissions of learned counsel for both the parties and perused the record. Perusal of the order of suspension dated 16.9.2009 and order dated 3.10.2009 clearly indicates that proceedings were initiated on the complaints made by some cardholders on Tehsil Diwas on which explanation was sought and further suspension order was passed on the basis of some inquiry made on the report dated 6.2.2009 of the Incharge Inspector weight and measure. Admittedly inquiry report was not supplied to the petitioner at any point of time. From the averments made in the counter affidavit it is apparent that petitioner is continuing as a fair price shop dealer for the year 1995 and the assertions made that there has never been any complaint against him has been admitted in the counter affidavit,so far as the names of the person who informed to the Incharge Inspector that they did not went to collect the food grains. The affidavits submitted by the petitioner were rejected as not sufficient. There is no proper consideration to the affidavits of complainant filed by the petitioner with his reply. Moreover in the inquiry made by the Supply Inspector dated 5.11.2008 the submissions of several cardholders were recorded. However it is not clear from the report as to whether Inquiry Officer had taken affidavits of these persons. The reply submitted by the petitioner to the show cause notice dated 11.11.2009 was rejected on the ground that it is not supported by any documentary evidence. However it is not clear from the report as to whether Inquiry Officer had taken affidavits of these persons. The reply submitted by the petitioner to the show cause notice dated 11.11.2009 was rejected on the ground that it is not supported by any documentary evidence. In view of the fact that the reply submitted by the petitioner along with the affidavits filed by him to the suspension order dated 16.9.2009 was not properly considered and further report dated 6.2.2009 was not served upon the petitioner at any point of time, the impugned order of cancellation dated 3.10.2009 cannot be sustained. The appellate authority i.e. Commissioner Jhansi Division, Jhansi did not examine the matter independently and simply affirmed the order passed by the S.D.M., Mauranipur. The same therefore deserves to be set aside. The writ petition is accordingly allowed. However it is made clear that the suspension order dated 16.9.2009 based upon the previous inquiry and the report of the Incharge Inspector weight and measure will remain operative. The matter is remitted to the competent authority who shall supply the report to the petitioner and call for fresh explanation and then decide the matter after consideration of all the documents on record and reply submitted by the petitioner and pass fresh order within a period of two months from the date a certified copy of this order is produced before it. _____________