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2015 DIGILAW 3574 (ALL)

Ghanshyam Tripathi v. State of U. P.

2015-11-18

D.Y.CHANDRACHUD, YASHWANT VARMA

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JUDGMENT The special appeal has been filed by the Sub-Divisional Magistrate, Sikandarpur, District Ballia against an interlocutory direction which was issued by the learned Single Judge on 29 September 2015 to the Principal Secretary (Food and Civil Supply) to hold a disciplinary enquiry against the appellant and to issue a charge-sheet. 2. The conduct of the appellant which is in question was during the period when he was posted as Sub-Divisional Magistrate, Vidhuna, District Auraiya. On 25 September 2013, the licence of a fair price shop holder was suspended. On 17 December 2013, the licence was cancelled by an order of the appellant. On 28 January 2014, a fresh allotment was made of the fair price shop following the cancellation of the licence of the original licence holder, the petitioner before the learned Single Judge. Against the cancellation, an appeal was filed (Appeal No.76 of 2014). An interim stay was granted by the Commissioner as an appellate authority on 12 February 2014. On 3 September 2014, the appellate authority passed a final order allowing the appeal and remanded the proceedings for fresh consideration. On remand, the licence was cancelled once again on 5 November 2014. It is not in dispute that this order was passed by the new Sub-Divisional Magistrate who had assumed charge of the office following the transfer of the appellant. Against the order of cancellation, an appeal was filed which was allowed by the Commissioner on 23 January 2015 and the proceedings were remanded back. Following the order of remand, a fresh order of cancellation was passed on 8 July 2015. An appeal was filed (Appeal No.135 of 2015) against the order dated 28 January 2014 making a fresh allotment. The appeal was dismissed by the Commissioner on 20 May 2015. 3. The writ petition before the learned Single Judge seeks to challenge the order dated 28 January 2014, making a fresh allotment of the fair price shop together with order dated 20 May 2015, dismissing the appeal and the final order of cancellation dated 8 July 2015. During the pendency of the proceedings, a notice to show cause was issued to the appellant by the learned Single Judge to explain how, despite the order of stay issued by the Commissioner on 12 February 2014, the licence of the original petitioner was not restored. 4. During the pendency of the proceedings, a notice to show cause was issued to the appellant by the learned Single Judge to explain how, despite the order of stay issued by the Commissioner on 12 February 2014, the licence of the original petitioner was not restored. 4. An affidavit was filed by the appellant before the learned Single Judge, stating that he did not restore the supply of the original petitioner due to a wrong impression which he formed that since a new allottee had been appointed on 28 January 2014 in pursuance of a Government Order dated 27 December 2004 prior to the passing of the order of stay on 12 February 2014 and the supply to the new allottee had not been stayed or quashed, that situation would not be altered. The learned Single Judge has, while entertaining the writ petition, passed an interlocutory order by which he directed a disciplinary enquiry against the appellant. 5. The issue before the Court is as to whether such a direction should have been issued at the interim stage. 6. Having considered the matter from all its perspectives and after hearing the learned senior counsel appearing on behalf of the appellant and the learned counsel appearing on behalf of the seventh respondent, who is the original petitioner, we are of the view that an order directing the holding of a disciplinary enquiry was not warranted at the interim stage. 7. As the facts narrated above would indicate, the first order of cancellation was passed on 17 December 2013. Following this order of cancellation, a fresh allotment of the fair price shop was made on 28 January 2014. The Commissioner, in appeal, stayed the order of cancellation of the licence on 12 February 2014. Undoubtedly, in consequence thereof, the cancellation of the licence was placed in abeyance and the original licence holder would have been entitled to the restoration of supply. However, the issue is as to whether the conduct of the appellant was so eggregious so as to warrant an interlocutory direction for holding of a disciplinary enquiry. Undoubtedly, in consequence thereof, the cancellation of the licence was placed in abeyance and the original licence holder would have been entitled to the restoration of supply. However, the issue is as to whether the conduct of the appellant was so eggregious so as to warrant an interlocutory direction for holding of a disciplinary enquiry. In our opinion, the appropriate direction for the learned Single Judge in these facts would have been to direct the head of the department, namely, the Principal Secretary (Food and Civil Supply) to look at the entirety of the conduct of the appellant and thereafter to determine as to whether any disciplinary action against the appellant was necessary. The learned Single Judge, undoubtedly, does possess the jurisdiction to order the holding of a disciplinary enquiry where the conduct of a public or government servant is found to be wantonly in breach of the duties cast upon him. Having regard to the above factual background, we are of the view that this extreme direction was not necessitated. 8. In the circumstances, we vacate the interlocutory direction of the learned Single Judge in regard to the holding of a disciplinary enquiry against the appellant. Instead and in place of that direction, we direct that the circumstances in which the appellant did not comply with the stay order passed by the Commissioner and did not restore the supply to the original licence holder, shall be considered by the Principal Secretary in the Food and Civil Supply Department who shall determine what action is necessary in that regard. The Principal Secretary shall file an affidavit before the learned Single Judge explaining the action in that regard, within one month. 9. The special appeal is allowed to the aforesaid extent. There shall be no order as to costs.