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2013 DIGILAW 590 (PAT)

Bhavesh Chandra Das v. State Of Bihar

2013-05-06

JAYANANDAN SINGH

body2013
ORAL ORDER At the threshold of hearing of this case, this Court enquired from learned counsel for the petitioner whether petitioner will like to avail the alternative remedy of revision before the Divisional Commissioner, against the impugned order of the Appellate Authority, available to him in terms of Clause 15(b) of the Public Distribution System (Control) Order, 2001, Notification G.S.R. No.1 dated 20.02.2007 (in short ‘the 2001 Control Order’). But he insisted that the matter be heard on merits and decided by this Court. Hence this order on merits. 2. Prayer of the petitioner in this writ application is for quashing of the order dated 10.01.2013 passed by the Collector, Araria in Appeal Case No.11/2011-12, whereby the order dated 09.07.2011, passed by the Licensing Authority-cum-Sub-Divisional Officer, Araria, canceling the licence of the petitioner under the Public Distribution System, has been affirmed and his appeal has been dismissed. 3. The facts of the case in chronological order are that initially through a letter dated 21.07.2010 issued under the signature of District Supply Officer, Araria, as contained in Annexure-1, a show-cause notice was issued to the petitioner containing five charges. He was asked to submit his reply by 30.07.2010 and show cause as to why action under appropriate provisions of law may not be initiated against him. Accordingly, petitioner filed his reply on the last date before the District Supply Officer, vide Annexure-2. Vide Annexure-3 dated 07.08.2010, the same was forwarded by the District Supply Officer to the Sub-Divisional Officer-cum-Licensing Authority, Araria with his comments. Matter was thereafter considered by the Sub-Divisional Officer-cum-Licensing Authority and orders were passed, contained in memo no.507 dated 10.08.2010, vide Annexure-4, by which petitioners licence was cancelled. Petitioner moved in appeal against the said order before the Collector, Araria. His appeal was considered and disposed of by order, as contained in memo no.586 dated 26.05.2011, vide Annexure-5. The Appellate Authority found that before the order was passed by the Licensing Authority, canceling the licence of the petitioner, proper opportunity had not been granted to the petitioner in accordance with law. Hence, the order was not in accordance with the provisions of Clause 7 (iv) of the 2001 Control Order. The order of the Licensing Authority was therefore quashed and the matter was remanded back to him with direction to comply with the provisions of the said clause and to pass a reasoned speaking order. Hence, the order was not in accordance with the provisions of Clause 7 (iv) of the 2001 Control Order. The order of the Licensing Authority was therefore quashed and the matter was remanded back to him with direction to comply with the provisions of the said clause and to pass a reasoned speaking order. The Licensing Authority accordingly issued a fresh show-cause notice to the petitioner through his letter no.334 dated 10.06.2011, vide Annexure-6. In the notice, five charges were mentioned and the petitioner was asked to submit his reply within two days along with relevant registers and cash-memos and to show-cause as to why action may not be taken against him under the provisions of the 2001 Control Order. Petitioner submitted his reply, vide Annexure-7 (date is not available on the document). The said reply of the petitioner was considered by the Licensing Authority, who, by his order dated 09.07.2011, vide Annexure-8, found the same as not satisfactory and, therefore, cancelled his licence. Petitioner moved in appeal against the said order before the Collector this time also, which was registered as Appeal No.11/2011-12. The same was considered and by the impugned order it has been rejected. 4. The submissions of learned counsel for the petitioner, during the hearing were (i) that in the second show cause notice, issued by the Licensing Authority, specific provision under which action was proposed to be taken against the petitioner was not mentioned; (ii) that only two days time was allowed to the petitioner by the notice to file his reply; (iii) that the materials in support of the charges were not accompanied with and supplied to the petitioner with the show cause notice; (iv) that there was no proper consideration of petitioners reply by the Licensing Authority and (v) that the Appellate Authority did not consider the case of the petitioner and pass a reasoned order dealing with his stand in appeal. In support of the submissions, learned counsel for the petitioner placed reliance on an order passed by a Bench of this Court dated 06.03.2013 in CWJC No.19335 of 2011. 5. Before considering and dealing with the said submissions of learned counsel for the petitioner, advanced at the time of hearing in the backdrop of the facts of the case, this Court would first like to consider the said order of this Court, relied upon by learned counsel for the petitioner. 5. Before considering and dealing with the said submissions of learned counsel for the petitioner, advanced at the time of hearing in the backdrop of the facts of the case, this Court would first like to consider the said order of this Court, relied upon by learned counsel for the petitioner. In the said case, petitioner had challenged the cancellation of his PDS dealers licence by the Licensing Authority in reference to Clause 7(i)(b) of the 2001 Control Order. It may be pointed out that the said clause (b) deals with failure of a PDS dealer ‘to provide grain to BPL families strictly at BPL rates and no higher’. In the said case, learned counsel for the petitioner had raised two issues namely (i) copies of the enquiry report and the statements of the complainants were not served upon the petitioner prior to taking a final decision by the Licensing Authority and (ii) that there was no proper consideration of the reply to the show cause notice filed on behalf of the petitioner. Skipping over the submissions made by learned counsel for the respondents noticed in the order, it appears that the learned Judge opined that “the statement made by the beneficiaries who have raised complaint against the petitioner during the enquiry or upon which the enquiry was conducted should have been supplied to the petitioner prior to taking a final decision in the matter so that a proper reply to the show cause could have been furnished by him.” Learned Judge also opined that the issue raised in paragraph 4 of the reply of the petitioner was not considered in proper perspective and no specific reason was assigned for rejecting the same except claiming it to be without any foundation which was not sufficient. The learned Judge also opined that in paragraph 1 to 3 of his reply petitioner had dealt with the other charges which did not appear to have been considered by the Licensing Authority. Hence, the learned Judge concluded that there was no proper consideration of the reply to the show-cause filed by the petitioner apart from the lacuna as discussed above in the order. Hence, the learned Judge concluded that there was no proper consideration of the reply to the show-cause filed by the petitioner apart from the lacuna as discussed above in the order. The learned Judge rejected the submissions of learned counsel for the respondents, that the petitioner had remedy of appeal against the said order, on the ground that once the Court was satisfied that no reasonable opportunity was provided to the petitioner prior to cancellation of licence and also there was lack of consideration of his reply to the show-cause notice, no useful purpose would be served by relegating the petitioner to Appellate Authority. Thus, from the said order of this Court dated 06.03.2013 passed in the said writ application, it is apparent that the order was passed taking into account the specific facts and circumstances of the case. The learned Judge found that there were infractions of Principles of Natural Justice in the action of the Licensing Authority. 6. So far as present case is concerned, it has to be first appreciated that the show cause notice which was issued to the petitioner was not based on any complaint of the beneficiaries or on any report of any enquiry with the findings against the petitioner. The five charges against the petitioner, as appearing from Annexure-6, were that (i) petitioner was absent from the shop without any prior information during the surprise inspection conducted in terms of the order of the Apex Court; (ii) not lifting an distributing food-grains between January, 2010 to July 2010 and not depositing bank draft in this regard; (iii) in spite of distribution of coupon not distributing food-grains under Antyodaya Scheme in June 2010 and July 2010; (iv) not informing the Licensing Authority about reasons for not depositing the bank draft and (v) not cooperating in the surprise inspection by producing the stock register and distribution register. Apparently, these all charges were negative in nature and related to non-cooperation, omission and failure on the part of the petitioner to perform his duties as PDS dealer licensee and non-compliance with the terms and conditions of the licence. Apparently, these all charges were negative in nature and related to non-cooperation, omission and failure on the part of the petitioner to perform his duties as PDS dealer licensee and non-compliance with the terms and conditions of the licence. Hence, in the present case, these charges did not require supply of copy of any specific complaint of any beneficiary or any report submitted thereon, after enquiry, to the petitioner along with the show cause notice, as neither any complaint of any beneficiary nor any enquiry report thereon was relied upon and referred to in the show cause notice. If the petitioner denied the charges, onus was on him to assert the positive and prove the same by producing evidences with his reply, which he failed to do. Hence, the submission of learned counsel for the petitioner, that the materials were not supplied to the petitioner along with the show cause notice, has no force. 7. In respect of submissions made by learned counsel for the petitioner, that the specific provision under which any action was proposed to be taken was not mentioned in the show cause notice, has also no force. The 2001 Control Order provides for two punishments for contravention of terms and conditions of licence by a licensee, namely either the licence can be suspended for a maximum period of 90 days, by way of a lighter punishment, or the same can be cancelled. The action, which the licensing authority may decide to take and the punishment he may decide to award, will always be dependent on the facts and circumstances of the case and on the basis of defence taken by the licensee in his reply to the show cause and to the charges. On the other hand, if there is mention of specific punishment in the show cause notice itself, which the authority intends to pass in the proceeding, he may be accused of acting with a premeditated mind and therefore was carrying prejudice against the notice. Hence, this Court finds no error committed by the Licensing Authority in only asking the petitioner to show cause as to why action may not be taken against him under the appropriate provisions of the 2001 Control Order. It is true that by this notice only two days time was allowed to the petitioner to file his show-cause reply and produce relevant registers and cash-memos. It is true that by this notice only two days time was allowed to the petitioner to file his show-cause reply and produce relevant registers and cash-memos. But in his reply, vide Annexure-7, which the petitioner filed in response to the notice, there is no stand of the petitioner that, on account of shortage of time, he was unable to file a proper reply, or was in any way prejudiced. On the other hand, it appears that in his reply he has tried to meet all the charges on merits. 8. Coming to the 4th submission of learned counsel for the petitioner, this Court finds that the Licensing Authority in its order (Annexure-8) has dealt with the stand of the petitioner in his reply specifically. Hence, this Court does not find that any omission was made by the Licensing Authority in considering the show cause of the petitioner. Here it may be clarified that non-consideration of reply in a proceeding, or specific stand taken in the reply, may amount to failure on the part of the authority, passing the order, to exercise his jurisdiction and having committed an error of law. But an improper or wrong consideration may only verge on the merits of the order which may be a subject matter for consideration in the statutory appeal provided under the law and not a subject matter for consideration by this Court in exercise of its powers under judicial review. Learned counsel for the petitioner has totally failed to point out any circumstance appearing from the order of the Licensing Authority (Annexure-8) which qualified for exercise of powers of judicial review by this Court. Moreover there is no prayer of the petitioner in this writ application to quash the said order of the Licensing Authority also, besides quashing of the appellate order. 9. The last submission of learned counsel for the petitioner in this case is only in abstract. The Appellate Authority in its order (Annexure-9) has noticed in detail the facts and issues appearing from the records and has come to a conclusion that there was no legal justification for interference with the order of the Licensing Authority and therefore has rejected the appeal. The Appellate Authority in its order (Annexure-9) has noticed in detail the facts and issues appearing from the records and has come to a conclusion that there was no legal justification for interference with the order of the Licensing Authority and therefore has rejected the appeal. The submission made by learned counsel for the petitioner that the order was not reasoned one and the stand of the petitioner was not dealt with by the Appellate Authority is only in abstract and not supported by any material available on record. The memo of appeal, filed by the petitioner before the Appellate Authority, is not on record and, in spite of hearing of the mater on more than one date, learned counsel for the petitioner did not take care to place it on record, even through a supplementary affidavit, to enable the learned counsel for the State to reply to this stand, and to enable this Court to consider the appellate order in reference to the same. In absence of the memo of appeal being available on record, it would have been improper for this Court to consider the same and base its finding on this issue in the light of any pleadings in the memo of appeal and pass orders on this stand of learned counsel for the petitioner. The memo of appeal having not been placed on record, this Court is completely in dark as to what stand petitioner had taken before the Appellate Authority and what was not considered and dealt with by him in his order. Therefore, the submission of learned counsel for the petitioner that the impugned order of the Appellate Authority is not a reasoned one and not dealing with the case of the petitioner before it, is, therefore, only in abstract and in air and hence cannot be taken into account. 10. As a result, this Court does not find any merit in the writ application. The same is dismissed.