Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 553 (ALL)

BRIJ LAL v. STATE OF U. P.

2015-03-25

DINESH MAHESHWARI, RITU RAJ AWASTHI

body2015
JUDGMENT Hon'ble Dinesh Maheshwari, J.—The petitioner, a licensee of fair price shop at Village Panchayat Shiv Charan Deeh, Block Tulsipur, District Balrampur, has preferred this writ petition seeking to question the order dated 29.12.2014 (Annexure 1) passed by the Sub-Divisional Officer, Tulsipur, suspending his license and calling upon him to submit written explanation. 2. The basic contention of the petitioner against the impugned suspension order is that his license has been suspended on a complaint made by the respondent No. 3 but without affording any opportunity of hearing to him and even without associating him in the process of preliminary inquiry. With reference to a decision of this Court in the case of Harpal v. State of U.P. And another, 2008(3) ADJ 36 , it is contended that for want of opportunity of hearing to the petitioner at the time of inquiry or at least before suspending his license, the order impugned offends the Government Order dated 29.7.2004 which clearly mandates compliance of the principles of natural justice before suspending/canceling fair price shop license. An interim order dated 22.12.2014 passed by a coordinate Bench in Misc. Bench No. 12719 of 2014 has also been referred with the submissions that taking note of similar contentions, this Court has stayed the operation of a similar suspension order. 3. Learned Standing Counsel appearing for the respondents 1 and 2 has raised an objection that the order impugned being an appealable one, the petitioner ought to have taken recourse to the regular remedy of appeal. It is also submitted that the petitioner has been served with a notice to submit his explanation and while submitting explanation, the petitioner may join the proceedings for appropriate orders in accordance with law. 4. Before dealing with the merits of the contentions urged on behalf of the petitioner, we may refer to the relevant background aspects. In the impugned order dated 29.12.2014, the Sub-Divisional Officer, Tulsipur has pointed out that the respondent No. 3 herein made a complaint against the conduct of fair price shop by the petitioner whereupon he got conducted an inquiry from the Revenue Inspector who had forwarded the inquiry report through the Tehsildar, Tulsipur. In the said inquiry report, statements of various cardholders have been referred, who have leveled different nature allegations like those of inadequate supply of essential commodities, extraction of extra money towards the commodities or denying the supplies. In the said inquiry report, statements of various cardholders have been referred, who have leveled different nature allegations like those of inadequate supply of essential commodities, extraction of extra money towards the commodities or denying the supplies. The Sub-Divisional Officer, with reference to this inquiry report, has found it to be a prima facie case of violation of the conditions of Control Order and the license. The Sub-Divisional Officer has, therefore, ordered suspension of license of the petitioner and has directed him to submit written explanation within a week. The shop in question, in the meantime, has been attached with a fair price shop licensee at Village Panchayat Dandav. 5. The contention of the petitioner, in essence, is that he was required to be associated with the proceedings and was required to be afforded an opportunity of hearing prior to the passing of the impugned order of suspension. In the interim order dated 22.12.2014, as passed in Misc. Bench No. 12719 of 2014, a coordinate Bench of this Court has indeed taken note of similar nature contentions made with reference to the decision in Harpal’s case (supra) and, while calling upon the respondents to file counter-affidavit, the operation of similar nature order has been stayed while leaving it open for the respondents to proceed with the inquiry and to bring it to the logical conclusion expeditiously. Nevertheless, the aforesaid order dated 22.12.2014 remains only an interim order and cannot be read as a precedent. 6. However, the final and concluded order has been passed in the case of Harpal (supra) and it appears necessary to examine if Harpal’s case could be read as laying down the principles of law suggested by the petitioner. In other words, the question is as to whether in Harpal’s case, this Court could be read to have laid down the law that even in the preliminary inquiry preceding the order of suspension, an opportunity of hearing is required to be extended to the license holder or he is required to be associated with such inquiry? Having examined the decision in Harpal’s case, we find it difficult to accept the suggestion so made. 7. In Harpal’s case, the suspension order was challenged on the ground that it was not disclosing any material which was to be relied upon during the inquiry. Having examined the decision in Harpal’s case, we find it difficult to accept the suggestion so made. 7. In Harpal’s case, the suspension order was challenged on the ground that it was not disclosing any material which was to be relied upon during the inquiry. It was also contended that the order did not mention as to when and by whom the shop was inspected to find that the notice was not displayed; and that allegation of not distributing the commodities to the Below Poverty Line persons was vague and no details of the persons had been mentioned. It was yet further contended that the order was lacking in the particular of persons to whom kerosene was sold at a rate in excess of the scheduled price. Another contention had been that the impugned suspension order was in violation of Government Order dated 29.7.2004. 8. The Hon’ble Division Bench proceeded to examine the Government Order dated 29.7.2004 laying down the procedure for suspending/canceling the fair price shop license/agreement. The Hon’ble Division Bench took note of sub-clause (i) of clause 2 of Government Order dated 29.7.2004, which may be referred herein too for its relevance. The said clause 2(i) reads as under : “2¼i½ mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugh fd;k tk;s A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk;s A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrk;sa izFke n`"V;k fl) jgh gksa ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk;s vkSj lkFk gh lkFk nqdkunkj dks dkj.k&crkvks uksfVl tkjh fd;k tk;s fd mldh nqdku D;ks u fujLr dj nh tk;s A ;fn izkjfEHkd tkap esa ik;k tk;s fd vfu;ferrk bruh xEHkhj ugh gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;s A fuyEcu&vkns'k@dkj.k crkvks uksfVl ,d ^^Lihfdax vkMZj^^ gksuk pkfg, rFkk mles izkjfEHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvks dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gksA^^ 9. The procedure as provided has been explained by the Hon’ble Division Bench in paragraph 4 of the decision in Harpal’s case and the same may also be taken note of as under: “4. The procedure as provided has been explained by the Hon’ble Division Bench in paragraph 4 of the decision in Harpal’s case and the same may also be taken note of as under: “4. From the aforesaid Government order it is apparent that if a complaint is received against a fair price shop licensee, a preliminary enquiry has to be conducted and the concerned officer has to be satisfied that on the basis of the enquiry report the licence was prima facie guilty of serious irregularities which may warrant cancellation of his fair price shop licence/agreement, only then the licence could be suspended and alongwith the suspension order, show-cause notice was required to be issued to the licensee to show-cause as to why his licence may not be cancelled. It was further provided that if in the preliminary enquiry report it is found that the irregularities are not serious enough on the basis of which the licence of the licensee could be cancelled then only a show-cause notice be issued, but in either case a speaking order was required to be passed in which all the irregularities found in the enquiry on which a reply was expected from the licensee must be mentioned. In view of Clause 2(i) of the G.O. dated 29.7.2004 the concerned authority is required to arrive at a decision on objective consideration as to whether the irregularities found against licensee in the enquiry are serious or not, and only then he can proceed either to suspend the fair price shop licence and issue show-cause notice for cancellation or he may merely issue a show-cause notice only to the licensee. The decision cannot be taken by the officer on subjective satisfaction. We are of the considered opinion that in view of the provisions of G.O. dated 29.7.2004 the concerned authority or officer should take a decision on the enquiry report on objective consideration by recording his reasons by a speaking order which should exist on the record. In absence of any order on objective consideration on the record would render the order of suspension/cancellation arbitrary and in violation of the mandatory provisions of G.O. Dated 29.7.2004.” (underlining supplied for emphasis) 10. The Hon’ble Division Bench, thereafter, referred to clause 2(ii) of the Government Order dated 29.7.2004, which relates to the order of suspension in the case of irregularities found during inspection or by any officer/district administration. The Hon’ble Division Bench, thereafter, referred to clause 2(ii) of the Government Order dated 29.7.2004, which relates to the order of suspension in the case of irregularities found during inspection or by any officer/district administration. The said clause also enjoins upon the department that the suspension order would be a speaking one and recite all the alleged irregularities and the licensee would be issued notice to show-cause as to why his license may not be cancelled. The Hon’ble Division Bench, thereafter, referred to clauses 4 and 5 of the Government Order dated 29.7.2004 requiring expeditious proceedings in the inquiry and decision of the same within a month while affording adequate opportunity of hearing to the concerned licensee. 11. A submission was made on behalf of the department before the Court that Uttar Pradesh Scheduled Commodities Distribution Order, 2004 (‘the Distribution Order of 2004’), which was notified on 20.12.2004, had superseded the Government Order dated 29.7.2004. The Hon’ble Division Bench rejected such a contention as being devoid of merit while referring to the saving clause in the said Distribution Order of 2004. The Hon’ble Division Bench also pointed out that the Distribution Order of 2004 did not provide for any procedure for suspension or cancellation of any license or agreement; and such a procedure was provided in the G.O. Dated 29.7.2004. The Hon’ble Division Bench, therefore, held that though the Government Order dated 29.7.2004 and Distribution Order of 2004 were valid and in force; but were operating in different fields. 12. Thereafter, the Hon’ble Division Bench made certain further observations in paragraph 10 of the order wherefrom it is, of course, suggested by the petitioner that an opportunity of hearing, even before suspension, was required to be given. The observations of Hon’ble Division Bench in paragraph 10 of the said decision read as under: “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. 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 Gopí’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) ECC 326. 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. (underlining supplied for emphasis) 13. The Hon’ble Division Bench rejected the contention that the petitioner was required to be relegated to the alternative remedy; and thereafter, examined the shortcomings in the impugned order of suspension and pointed out the same as follows: “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.” 14. The Hon’ble Division Bench found that the allegations were vague and that with the suspension order, no notice had been issued to the licensee to show-cause as to why the license may not be cancelled. Thus, the suspension order was found to be vitiated, as observed in paragraph 13 of the order, which reads as under: “13. The Hon’ble Division Bench found that the allegations were vague and that with the suspension order, no notice had been issued to the licensee to show-cause as to why the license may not be cancelled. Thus, the suspension order was found to be vitiated, as observed in paragraph 13 of the order, which reads as under: “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.” 15. The question is as to whether the aforesaid decision in Harpal’s case could be read as laying down a clear principle that even in the preliminary inquiry before suspension, the licensee is required to be associated with and afforded an opportunity of hearing? It remains trite that for the purpose of ratio decidendi, a passage in an order of the Court cannot be read out of context or detached from the fact situation as also from all other findings and observations in the same order. It is but clear that in Harpal’s case, the basic grievance of the writ petitioner was about vagueness and uncertainty of allegations and want of the basic material on which the allegations were sought to be levelled against him where, even the particulars of the persons with whom he had allegedly dealt in an unfair manner were not available. It had been in the context of such a fact situation that the Court found the allegations to be vague and specific instances with relevant material being not on record. Coupled with this, the Court found another flaw in the order that the notice was not issued to the licensee to show-cause as to why his license may not be cancelled. Coupled with this, the Court found another flaw in the order that the notice was not issued to the licensee to show-cause as to why his license may not be cancelled. It was essentially for these reasons that the Court found the suspension order to be violative of clause 2(i) of the Government Order dated 29.7.2004. 16. Significantly, the said clause 2(i) of the Government Order dated 29.7.2004 nowhere contemplates association of the licensee even in the preliminary inquiry nor it mandates an opportunity of hearing to him before passing the order of suspension. The requirement, of course, is that of passing of speaking order of suspension with simultaneous issuance of show-cause notice to the licensee indicating the irregularities found in the preliminary inquiry. The said clause 2(i) has been directly and precisely interpreted in paragraph 4 of the Harpal’s case, which has been reproduced herein above and wherefrom, it is clear that the Court has laid down the requirement that the decision of the concerned authority on the inquiry report ought to be of objective consideration by recording reasons; and in the absence of objective consideration, the order of suspension would be treated as arbitrary. 17. The Government Order dated 29.7.2004, of course, requires opportunity of hearing to the licensee before cancellation of his license. However, in paragraph 10 of the order in Harpal’s case, an observation came to be made by the Court that the Government Order 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 is on the basis of this observation in Harpal’s case the petitioner seeks to suggest that even before suspending a license, the licensee is required to be associated in the preliminary inquiry and is required to be afforded opportunity of hearing. We find it difficult to accept this suggestion after having minutely examined the entire of the order in Harpal’s case. No such requirement is found in clause 2 of the Government Order dated 29.7.2004; and the Court has also not said in explicit terms that the licensee is required to be associated in the preliminary inquiry before suspension too. 18. Of course there is requirement of the suspension order to be a speaking one and this facet of the principles of natural justice could be seen in clause 2 of Government Order dated 29.7.2004 but not beyond. 18. Of course there is requirement of the suspension order to be a speaking one and this facet of the principles of natural justice could be seen in clause 2 of Government Order dated 29.7.2004 but not beyond. In other words, the requirement is of an objective consideration by the authorities concerned (as observed in paragraph 4 of the order in Harpal’s case); and that the suspension order ought to be a speaking order containing the relevant reasons. In fact, the requirement as applicable for the purpose of the proceedings for cancellation of the license cannot, for all purposes be equated with the procedure to be adopted for the purpose of suspending license. The two processes i.e., of suspension on one hand and cancellation on the other, for their very nature, stand at slightly different footings. The general observations made by the Court in paragraph 10 of the decision of Harpal’s case where “suspending/canceling” have been put together with a stroke mark cannot, with respect, be read as if the requirement of procedure for suspension stand at equal footing with the requirements of procedure for cancellation. The expression ‘Principles of Natural Justice’ in these two processes have to be applied with reference to the very nature of these processes; and we see no reason to hold that the obvious distinction in the two processes stands obliterated with the expression occurring in paragraph 10 of the Harpal’s case (supra). As observed, this paragraph 10 cannot be read in disjunction of other passages in the same order nor a non-existent requirement could be read in the Government Order dated 29.7.2004. 19. Therefore, we are clearly of the view that neither clause 2(i) of the Government Order dated 29.7.2004 lays down any requirement of opportunity of hearing and association of the licensee in the preliminary inquiry before an order of suspension nor the Hon’ble Division Bench has laid down any such procedure in Harpal’s case. 20. Opportunity of hearing and association with inquiry of the licensee in question is, of course, the mandate before an order of cancellation of license but such a requirement cannot, as such, be applied in the matter of suspension. 21. In view of what has been discussed above, the basic contention urged on behalf of the petitioner is required to be, and is, hereby rejected. 22. 21. In view of what has been discussed above, the basic contention urged on behalf of the petitioner is required to be, and is, hereby rejected. 22. The learned counsel for the petitioner has also attempted to refer to the copies of certain so-called affidavits of certain cardholders to suggest that the allegation against him are unfounded. We do not propose to go into the merits of allegations against the petitioner and these suggestions are left at that only. We would leave it open for the petitioner to take recourse to appropriate proceedings in accordance of law so as to contest the allegations on their merit. 23. Subject to observations foregoing and while leaving it open for the petitioner to take recourse to the appropriate proceedings in accordance with law, this petition stands dismissed. ——————