Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 3651 (ALL)

KALEEM ULLAH KHAN v. STATE OF U. P.

2014-12-08

MAHESH CHANDRA TRIPATHI

body2014
JUDGMENT Hon’ble Mahesh Chandra Tripathi, J.—Heard learned counsel for the petitioner and learned counsel for the respondents. 2. By means of the present writ petition, the petitioner has prayed for quashing the order dated 29.9.2012 passed by respondent No. 3 by which the fair price shop of the petitioner had been cancelled. 3. Aggrieved with the said cancellation order, the petitioner had preferred statutory appeal, which was also rejected by the respondent No. 2 vide an order dated 16.1.2013. 4. Brief facts giving rise to the present writ petition are that the petitioner is a fair price shop dealer in Mohalla Gher Hasan Khan, Rampur since the date of his allotment and his work and conduct is satisfactory and no complaint has ever been made against the petitioner regarding irregularities in distribution of essential commodities by the valid ration card holders till date. 5. It has been averred in the writ petition that the respondent No. 2 suspended the fair price shop of the petitioner on the basis of mala fide complaint as well as on report being submitted by the Supply Inspector and directed the petitioner to submit his reply. Thereafter, in pursuance to the suspension order, the petitioner submitted his explanation before the respondent No. 2 alongwith documents and affidavit of villagers denying the entire allegation levelled against him. It has also been averred that the respondent No. 2, without considering the explanation given by the petitioner and without perusing the evidence on record cancelled the licence of fair price shop of the petitioner. 6. Being aggrieved with the cancellation order, the petitioner had preferred an Appeal No. 31 of 2012-13 (Kaleem Ullah Khan v. State of U.P. and others) alongwith stay application before the respondent No. 2 under Section 28 (3) of U.P. Essential Commodities (Distribution) Order, 2008. Thereafter the respondent No. 2, without considering the facts of the case and without perusing the material on record, had dismissed the appeal of the petitioner. 7. Learned counsel for the petitioner submits that a Division Bench of this Court in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation ltd., [2003] (21) LCD 610, held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. 7. Learned counsel for the petitioner submits that a Division Bench of this Court in Radhey Kant Khare v. U.P. Cooperative Sugar Factories Federation ltd., [2003] (21) LCD 610, held that after a charge-sheet is given to the employee an oral enquiry is a must, whether the employee requests for it or not. He further submits that no doubt, the aforesaid principles have been laid down by the Division Bench in the service matter but the same principle would also be applicable while making an inquiry in the present matter. Hence a notice should be issued to him indicating him the date, time and place of the enquiry. On that date so fixed the oral and documentary evidence against the employee should first be led in his presence. Thereafter the employer must adduce his evidence first. The reason for this principle is that the charge-sheeted employee should not only know the charges against him but should also know the evidence against him so that he can properly reply to the same. The person who is required to answer the charge must be given a fair chance to hear the evidence in support of the charge and to put such relevant questions by way of cross-examination, as he desires. Then he must be given a chance to rebut the evidence led against him. 8. It is settled principle that if any material is sought to be used in an enquiry, the copies of material must be supplied to the party against whom such an enquiry is held. The Disciplinary Authority as well as Appellate Authority did not consider this aspect of the matter and expressed their concurrence to the finding of the Inquiry Officer, without applying their independent and free mind. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Enquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. 9. Learned counsel for the respondents submits that the impugned orders are sustainable and the same had been passed strictly in accordance with law and as per record. 10. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. 9. Learned counsel for the respondents submits that the impugned orders are sustainable and the same had been passed strictly in accordance with law and as per record. 10. On the facts of the present case, the petitioner ought to have been permitted to participate in the aforesaid inquiry and the statements of the complainants should not have been recorded in the presence of the petitioner, and without furnishing the statement of the complainants to him and without giving him an opportunity to cross-examine the complainants, who had deposed against the petitioner, and thus any such action based on any such report or evidence could not become a foundation for passing an order of cancellation of fair price licence of the petitioner as cancellation has civil consequences. 11. Learned counsel for the petitioner further submits that it was incumbent upon the inquiry officer to follow the procedure, which is prescribed in Government Order dated 29.7.2004, which provides the procedure for suspension/cancellation of fair price shop lecence, so that the officers cannot proceed in illegal manner, and unnecessary litigation may be avoided. He also placed his reliance upon a Division Bench judgment of this Court in Harpal v. State of U.P. and others, 2008(3) ADJ 36 (DB). For ready reference the relevant paras Nos. 9 to 15 are reproduced here in below : “9. From a reading of Clause 30 it is clear that the Uttar Pradesh Scheduled Commodities Order, 1990 was superseded and repealed. Clause 31 of 2004 Order states that it will have effect irrespective on any thing contrary to it contained in any earlier order issued by the State Government. The 2004 Order was issued by the State Government for maintaining the supplies of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices. Its Clause 21 is concerned with monitoring of fair price shops by the food officer and he was to make regular inspections. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and Clause 23 gave power to the State Government to authorize any person to inspect the stocks of scheduled commodities other than the officer mentioned in Clause 22. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and Clause 23 gave power to the State Government to authorize any person to inspect the stocks of scheduled commodities other than the officer mentioned in Clause 22. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. But the 2004 Order did not provide any procedure for suspension/cancellation of the licences or agreement of fair price shop licensees. The 2004 Order did not lay down any procedure as to how and in what manner the licence/agreement of a fair price shop licensee/agent could be suspended or cancelled nor any time frame had been provided. On the other hand, the Government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. The Government order dated 29.7.2004 does not contain any provision which is contrary to 2004 order. The 2004 Order has not superseded the Government order dated 29.7.2004. The G. O. dated 29.7.2004 and 2004 Order dated 20.12.2004 operate in different fields with the same object to ensure equitable and fair distribution of essential commodities to the people. We are of the considered opinion that the G.O. dated 29.7.2004 and the 2004 Order dated 20.12.2004 are valid and are still in force and are applicable in the State of Uttar Pradesh. 10. The next question is whether the impugned suspension order has been passed in violation of principles of natural justice? From the perusal of the suspension order it is clear that no opportunity of hearing was afforded to the petitioner either at the time of enquiry or before passing of the order suspending the fair price shop licence/agreement of the petitioner. In the counter-affidavit it had not been stated that opportunity of hearing was given at any stage. The enquiry was conducted behind the back of the petitioner. The entire proceedings were in violation of the principles of natural justice. In the counter-affidavit it had not been stated that opportunity of hearing was given at any stage. The enquiry was conducted behind the back of the petitioner. The entire proceedings were in violation of the principles of natural justice. The argument of learned Additional Chief Standing Counsel that principles of natural justice do not apply to the cases where fair price shop licence had been granted in view of the decision in Gopi’s case, cannot be accepted. The G.O. dated 29.7.2004 clearly mandates and directs the authorities to comply with the principles of natural justice before suspending/cancelling fair price shop licences/agreements. It appears that this G.O. dated 29.7.2004 was not placed before the Division Bench which decided Gop’s case and in Ignorance of this Government order the decision has been rendered and the decision has been passed in sub-stlientio in view of the law declared by the Apex Court in State of U.P. and another v. Synthetics and Chemicals and another, MANU/SC/0616/1991 : 1993(41)ECC326. Since the G.O. dated 29.7.2004 was not considered by this Court the decision in Gopi’s case cannot be said to be a good law or a precedent. 11. The next question is whether the petitioner has to be relegated to alternative remedy of filing an appeal to challenge the suspension order which has been passed in violation of principles of natural justice? The learned Additional Chief Standing Counsel has vehemently urged that even if there was violation of principles of natural justice the petitioner had an alternative remedy to file an appeal before the Commissioner challenging the suspension order. It is true that the suspension or cancellation of a fair price shop licence could be challenged under Clause 28(3) of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 before the concerned Divisional Commissioner, but the appeal under Clause 28(3) lies only against the suspension or cancellation of agreement of the fair price shop. But where an order is passed suspending/cancelling the fair price shop licence/agreement in violation of principles of natural justice the alternative remedy would not be a bar and a writ petition would be maintainable under Article 226 of the Constitution of India. But where an order is passed suspending/cancelling the fair price shop licence/agreement in violation of principles of natural justice the alternative remedy would not be a bar and a writ petition would be maintainable under Article 226 of the Constitution of India. It has been held by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, MANU/SC/0664/1998 : AIR1999 SC 22 that even if an alternative statutory remedy is available it would not be a bar in maintenance of a writ petition under Article 226 of the Constitution in at least three contingencies, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. We have already held that it was mandatory for the authorities/officers to comply with the principles of natural justice before suspending/cancelling the fair price shop licences/agreements. Therefore, we are of the considered opinion that the impugned suspension order has been passed in violation of principles of natural justice, the writ petition filed by the petitioner without availing the alternative remedy of appeal, is maintainable under Article 226 of the Constitution. 12. The last question is whether on merits the suspension order is liable to be set aside? In view of the findings recorded by us that the suspension order was passed in violation of principles of natural justice, it is not necessary to examine whether the order suspending the licence of the petitioner was in ‘accordance with Government orders, but since the Additional Chief Standing Counsel has vehemently attempted to defend the order on merits, we consider it necessary to examine the correctness of the suspension order in brief. The petitioner’s fair price shop licence/agreement has been suspended. The suspension order does not disclose that any opportunity of hearing was given to the petitioner. It appears that Sub-Divisional Magistrate, Faridpur, Bareilly on the basis of oral complaints of the villagers got an enquiry conducted against the petitioner on 27.5.2005 and in the enquiry it was found that the shop was closed and rate board was not put outside the shop. The fair price shop licensee was charging Rs. It appears that Sub-Divisional Magistrate, Faridpur, Bareilly on the basis of oral complaints of the villagers got an enquiry conducted against the petitioner on 27.5.2005 and in the enquiry it was found that the shop was closed and rate board was not put outside the shop. The fair price shop licensee was charging Rs. 12 per litre in excess of the scheduled price of kerosene oil which was violation of condition No. 24 (Ga) of the licence/agreement. In the enquiry ration cards were also inspected and it was found that every month kerosene oil was not properly distributed. Sugar was also not properly distributed to persons who were below the poverty line which was violation of condition No. 3 of the licence/agreement. The shop of the petitioner was suspended and attached to another fair price licensee Devendra Kumar Pathak. It is not mentioned in the suspension order that who conducted the enquiry and when? It is also not clear that if the shop was closed at the time of enquiry then from where this fact was revealed that the petitioner was charging Rs. 12 per litre in excess of scheduled price of kerosene oil and from where the ration cards were inspected by the enquiry officer. The impugned suspension order does not disclose that any show-cause notice was issued to the petitioner to submit his reply as to why the petitioner’s licence may not be cancelled. According to learned Counsel for the petitioner on the basis of such vague allegations licence/agreement of the petitioner could not be suspended. He has placed reliance on the decisions of this Court in Civil Misc. Writ Petition No. 60978 of 2005, Smt. Alka Rani v. State of U.P. and others, decided on 14.9.2005. The order of the Division Bench is extracted below: “We have heard the learned Counsel for the petitioner and the learned standing counsel. Petitioner’s fair price shop licence was suspended and by the impugned order dated 22.8.2005 it has been cancelled. The cancellation order says that despite opportunity the petitioner did not submit any reply. The order of the Division Bench is extracted below: “We have heard the learned Counsel for the petitioner and the learned standing counsel. Petitioner’s fair price shop licence was suspended and by the impugned order dated 22.8.2005 it has been cancelled. The cancellation order says that despite opportunity the petitioner did not submit any reply. Normally, we would have directed the petitioner to avail alternative remedy of appeal, but we find from the show-cause notice (Annexure-4 to this writ petition) that almost all the charges are absolutely vague without giving any specific instance and without mentioning any material on the basis of which each of the charges is proposed to be proved against the petitioner. For example when charge No. 2 says that distribution according to entitlement of ration cardholders has not been made every month, the notice should also have indicated when and to which card holders distribution was not made. Similarly, when charge No. 4 says that kerosene oil is being sold at the rate of Rs. 11 per litre, it should have been disclosed when and from which person such extra value was charged. Without specific instances of this kind and without informing the material which is sought to be read against the petitioner in support of these charges, no proper effective defence or reply was possible. The only thing, which the petitioner could have done, was to make an equally vague denial that he was not guilty of these charges, which ultimately would lead nowhere. Levelling of charge is easy, proving of charge is another matter. A person can be punished for proved charges and not for levelled charges. The standard of proof may vary but nevertheless proof must be there. If evidence is there to prove charges, this Court will not go into sufficiency of the evidence. But a finding based on no evidence is not sustainable. In the circumstances, we find that the impugned order is based on no material. The writ petition is allowed. The impugned order dated 22.8.2005 is quashed.” 13. The decision in Smt. Alka Rani’s case applies to the facts of the case in hand, as in this case also allegations are vague and specific instances and material sought to be read in support of the allegations against the petitioner have not been mentioned. The writ petition is allowed. The impugned order dated 22.8.2005 is quashed.” 13. The decision in Smt. Alka Rani’s case applies to the facts of the case in hand, as in this case also allegations are vague and specific instances and material sought to be read in support of the allegations against the petitioner have not been mentioned. If no material is mentioned in the suspension order then substituting the material in the counter-affidavit would be of no help to the respondents. We further find that alongwith the suspension order no show-cause notice had been issued to the petitioner directing him to show-cause as to whey his fair price shop licences/agreement may not be cancelled. The impugned suspension order is vitiated on this ground alone being in violation of mandatory requirements of G.O. Dated 29.7.2004. 14. For the aforesaid reasons, we are in agreement with learned Counsel for the petitioner that the impugned suspension order is vague and on the basis of which petitioner’s fair price shop licence/agreement could not be cancelled and the impugned order deserves to be quashed. 15. In the result, this writ petition succeeds and is allowed. The impugned suspension order dated 25.5.2005 passed by respondent No. 2, Annexure-1 to the writ petition, is quashed” 12. In Abu Baker v. State of U.P. and others, 2010 (6) ADJ 339 , this Court had held as follows : “There is no material on record indicating either the petitioner was given any opportunity to cross-examine the witness who had deposed against him or the copies of the statements of witnesses so recorded were furnished to him. Thus what follows from the above discussion is that the petitioner has been penalised on the basis of the statements of Antodaya and BPL card holders recorded behind his back although neither the copies of the statements of the aforesaid witnesses were furnished to the petitioner nor he was given any opportunity to cross-examine the witness so examined.” 13. Applying the ratio of the law laid down in the aforesaid case, the Court finds that the inquiry proceedings were conducted in flagrant defiance of the Government Order dated 29.7.2004 and the law laid down by this Court and therefore, the case of the petitioner was severely prejudiced thereby making the impugned orders dated 29.9.2012 and 16.1.2013 unsustainable in law. 14. The writ petition succeeds and is hereby allowed. 14. The writ petition succeeds and is hereby allowed. The orders impugned dated 29.9.2012 and 16.1.2013 are hereby quashed. However, it shall be open for the respondents to pass fresh orders in the light of the observations made hereinabove and in accordance with law within a period of two months from the date of the production of the certified copy of this order. No order as to costs. ——————