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2015 DIGILAW 1308 (JHR)

Kiran Devi v. State of Jharkhand, Secretary

2015-10-15

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 28.08.2015 cancelling the Fair Price Shop license of the petitioner, the present writ petition has been filed. 2. Challenging the impugned order dated 28.08.2015 as absolutely vague and non-speaking, the learned counsel for the petitioner submits that without considering the reply of the petitioner to the showcause notice dated 29.07.2015, the PDS license has been cancelled. It is contended that the impugned order is based on mere allegation without any proof of involvement of the petitioner in black-marketing of kerosene oil and therefore, the impugned order dated 28.08.2015 is liable to be quashed. 3. Percontra, Mr. Atanu Banerjee, the learned G.A. submits that no legal right is vested in the petitioner to claim continuance of PDS license, forever. After conducting an enquiry when discrepancies in the stock of kerosene oil was found, a showcause notice was issued to the petitioner, and after considering reply to the showcause notice the license has been cancelled, and thus, the rules of natural justice have been followed. It is contended that no prejudice has been caused to the petitioner. It is further submitted that the present writ petition is not maintainable and it is liable to be dismissed on the ground of availability of alternative remedy of appeal before the Deputy Commissioner. 4. Before examining the merits of the matter, I shall examine the question of alternative remedy of appeal before the Deputy Commissioner. It is not in dispute that on 28.07.2015, the Deputy Commissioner, Ramgarh issued a direction for physical verification of kerosene oil stock in the PDS outlets, and in pursuance thereof on 29.07.2015 a report was submitted to the Deputy Commissioner, Ramgarh. It is not in dispute that pursuant to direction of Deputy Commissioner, showcause notice dated 29.07.2015 was issued by the Sub-Divisional Officer and finally, the PDS license was cancelled. In the writ petition, the petitioner has specifically pleaded that the appeal before the Deputy Commissioner would not be an efficacious remedy to the petitioner. In the counter-affidavit the respondents have denied the plea taken by the petitioner and have asserted that the Deputy Commissioner is the competent authority to issue direction for enquiry and the direction issued by the Deputy Commissioner in the administrative capacity would not debar him from hearing the appeal. In the counter-affidavit the respondents have denied the plea taken by the petitioner and have asserted that the Deputy Commissioner is the competent authority to issue direction for enquiry and the direction issued by the Deputy Commissioner in the administrative capacity would not debar him from hearing the appeal. No doubt while hearing appeal against the order of cancellation of PDS license the Deputy Commissioner exercises quasi-judicial powers and normally, the Deputy Commissioner should be permitted to discharge both, administrative as well as quasi-judicial functions. However, in the present case there is a reasonable apprehension that the Deputy Commissioner would be prejudiced because in his capacity as a superior authority he had ordered enquiry. In “Manak Lal vs. Dr. Prem Chand Singhvi” AIR 1957 SC 425 , the Hon'ble Supreme Court has observed that “every member of a tribunal that seats to try issue in judicial or quasi judicial proceeding must be able to act judicially; and it is of the essence of the judicial decision and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of a tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done”. In “G. Sarana (Dr.) vs. University of Lucknow” (1976) 3 SCC 585 , the Hon'ble Supreme Court has observed that “...............question is not whether a member of an administrative board while exercising quasi judicial powers or discharging quasijudicial functions was biased, for it is difficult to read the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias human probability and ordinary course of human conduct have to be taken into consideration...............................”. In the present case, as noticed above the entire exercise, from inspection to showcause notice, has been carried on the direction of the Deputy Commissioner. Except reproducing the allegations in the showcause notice issued to the petitioner, the impugned order does not refer to merits of the matter. In the present case, as noticed above the entire exercise, from inspection to showcause notice, has been carried on the direction of the Deputy Commissioner. Except reproducing the allegations in the showcause notice issued to the petitioner, the impugned order does not refer to merits of the matter. Had the impugned order been founded on a discussion on the merits of the case, I would have no hesitation in accepting the plea of alternative remedy raised by the respondents. Moreover, the respondents have already initiated the process for awarding of fresh licenses which, if permitted to continue in the above facts, would lead to further complications. In my opinion, considering the nature of order passed in the present case there is a reasonable apprehension that the Deputy Commissioner is likely to have been biased. Accordingly, the objection to maintainability of the writ petition on the ground of alternative remedy is rejected. 5. Now, adverting to the merits of the case, I find that the showcause reply submitted by the petitioner has been brushed aside by merely recording that it is not satisfactory. In her reply to the showcause notice dated 29.07.2015, the petitioner has asserted that on 25.07.2015 and 29.07.2015 the entire stock of kerosene oil was distributed properly amongst the beneficiaries. The petitioner has further asserted that kerosene oil was distributed in presence of Mukhiya and Ward member. Along with her showcause reply, the petitioner produced certificate of Mukhiya and Ward member. From the showcause notice and the impugned order it is apparent that the presumption of black marketing has been raised only for the reason that at the time of inspection stock of kerosene oil was found nil. The impugned order dated 28.08.2015 does not refer to and deal with the stand taken by the petitioner. On the contrary disputing the plea taken by the petitioner that electric supply in the area is irregular, the impugned order records that electricity supply in the area is available round the clock for 24 hours. In the counter-affidavit, letter dated 10.10.2015 of the M/s Central Coalfields Limited has been produced in support of the finding recorded in the impugned order dated 28.08.2015 that there is regular supply of electricity in the area. Admittedly, the said letter was not furnished to the petitioner nor there is a reference of the said letter in the impugned order dated 28.08.2015. Admittedly, the said letter was not furnished to the petitioner nor there is a reference of the said letter in the impugned order dated 28.08.2015. It is also a matter of record that a copy of the inspection report dated 29.07.2015 was not furnished to the petitioner. It is well settled that the document on the basis of which an adverse order has been issued, must be supplied to the affected party. The learned G.A. contended that since inspection was conducted in presence of the petitioner and she has signed the report therefore, the inspection report was not required to be furnished to the petitioner. This contention is liable to be rejected. The inspection report dated 29.07.2015, a copy of which has been produced, was not prepared on the spot. Only the verification of the stock was affirmed by the petitioner. The petitioner has, however, explained the variance in the stock and in stock register. In “Executive Committee, U.P. Warehousing Corporation vs. Chandra Kiran Tyagi” (1969) 2 SCC 838 , the Hon'ble Supreme Court held the enquiry proceeding vitiated because the enquiry officer collected information from outside source and utilised the same in his findings recorded against the delinquent officer without disclosing that information to the officer. 6. In the above factual background, I find that the order cancelling the PDS license suffers from serious infirmity in law and accordingly, the impugned order dated 28.08.2015 is hereby quashed however, the matter is remitted to the Sub-Divisional Officer, Ramgarh to pass a fresh order after considering the reply to the showcause notice dated 29.07.2015. The petitioner shall be furnished a copy of the inspection report and atleast one week's time should be given to the petitioner to respond to the inspection report. The order passed by the Sub-Divisional Officer, Ramgarh must reflect the stand taken by the petitioner. 7. The writ petition stands allowed in the above terms. Petition allowed.