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2016 DIGILAW 1578 (ALL)

MITHLESH KUMARI v. STATE OF U. P.

2016-04-27

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Jyotish Awasthi, learned counsel for the petitioner and the learned Standing Counsel appearing for the State-respondents. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 22.11.2012 passed by the Sub Divisional Officer, Bharthana and the order dated 17.8.2013 passed by the Commissioner, Kanpur Division, Kanpur in Appeal No. 269 of 2013 (Mithlesh Kumari v. State of U.P. and others). 3. vide order dated 22.11.2012 the petitioner’s agreement to run fair price shop has been cancelled whereas by the subsequent order dated 17.8.2013 the petitioner’s appeal filed against the cancellation order dated 22.11.2012 has been dismissed. 4. The facts of the case, in brief, are that while working as fair price shop agent of village Nagla Jind (Gram Sabha Shekhpur) Block Takha District Etawah agreement of the petitioner to run the fair price shop was suspended on 17.10.2012 on account of shortage of stock, non production of distribution register for the months of August and September, 2012, incomplete description on the rate board, availability of uncertified litre and non distribution of the schedule commodities to the various card holders. An enquiry was made after receipt of various complaints on affidavit of the card holders. After placing the agreement under suspension the petitioner was required to file reply with respect to the irregularities pointed out in the suspension order within a period of one week but the petitioner did not file any reply within the aforesaid period. However, he filed an application for grant of further time on account of her illness. Taking note of the petitioner’s application fifteen days more time was granted even then no reply was filed. Consequently, the petitioner’s agreement was cancelled vide order dated 22.11.2012. 5. Aggrieved petitioner filed appeal against the aforesaid order that too has been dismissed. Challenging the aforesaid two orders the present writ petition has been filed in which on 11.10.2013 notices were issued and learned standing counsel was directed to file counter-affidavit. The complainant, who appeared through Sri A.P.N.Giri, was also directed to file counter-affidavit. Pursuant thereto learned standing counsel as well as Sri A.P.N.Giri have filed counter-affidavits. The petitioner has also filed rejoinder-affidavits to the same. 6. For deciding the case it would be appropriate to quote paragraph Nos. 8 and 13 of the writ petition, which is reproduced herein under: “8. Pursuant thereto learned standing counsel as well as Sri A.P.N.Giri have filed counter-affidavits. The petitioner has also filed rejoinder-affidavits to the same. 6. For deciding the case it would be appropriate to quote paragraph Nos. 8 and 13 of the writ petition, which is reproduced herein under: “8. That, it is very important to write here that though various reports have been mentioned in suspension order to justify suspension order but no copy of about report & complaints made against the petitioner have been supplied to petitioner alongwith suspension order. The correct fact is that all the reports have been prepared on paper by sitting in office and no physical inquiry has been conducted that’s why copies of above reports & complaints have not been given to petitioner alongwith suspension order, so that petitioner should not know the real contents of above reports and only selective portion has been shown in the suspension order which is contrary to the provisions of Government order dated 29 Jul 2004. 13. That it isalso very important to write that after suspension of fair price shop the petitioner, no further detailed inquiry was conducted by any officer to find out the correctness of allegations made in the suspension order whereas it is mandatory to conduct detailed inquriy as per para-4 of the Government Order dated 29.7.2004.” The reply of the paragraphs Nos. 8 and 13 of the writ petition have been given in paragraph Nos. 8 and 12 of the counter-affidavit respectively duly sworn by Sri Jeet Singh, Regional Food Officer, Tehsil Bharthana, Etawah. For appreciation paragraphs Nos. 8 and 13 of the writ petition have been given in paragraph Nos. 8 and 12 of the counter-affidavit respectively duly sworn by Sri Jeet Singh, Regional Food Officer, Tehsil Bharthana, Etawah. For appreciation paragraphs Nos. 8 and 12 of the counter-affidavit are reproduced herein below: ^^8& ;g fd ;kfpdk ds izLrj la[;k&8 esa ;kph dk dFku ftl :i esa of.kZr gS Lohdkj ugha gSA blds mRrj esa ;g dguk gS fd ;kph dks fuyEcu ds lkFk dkj.k crkvks uksfVl e; lQkbZ] lk{; o Li"Vhdj.k gsrq fn;k x;k gS rFkk ;kfpuh dh iw.kZ tkudkjh leLr fujh{k.k o izLrqr tkWp vk[;k dh jgh gS rFkk ik;h x;h vfu;feRkrkvksa vkSj fu;eksa ds mYya?ku dh psrkouh nh x;h rFkk leLr vfu;feRkrkvksa ds ckjs esa mYys[k fd;k x;k tks ;kph }kjk ;kfpdk esa layXu&1 gSA 12& ;g fd ;kfpdk ds izLrj la[;k&8 esa ;kph dk dFku ftl :i esa of.kZr gS Lohdkj ugha gSA blds mŸkj esa ;g dguk gS fd lgk;d fodkl vf/kdkjh dh vk[;k izkIr gksus ij mRrjnkrk izfroknh }kjk forj.k ds lEcU/k esa fu"i{k vf/kdkjh Jh ykyef.k nqcs] uk;c rglhynkj] HkjFkuk o Jh xaxk'kdj cktis;h] iwfrZ fujh{kd dks i= la[;k&899 fnukafdr 24&9&2012 ds }kjk la;qDr Vhe xfBr dj la;qDr :i ls lqLi"V vk[;k miyC/k djkus gsrq funsZf'kr fd;k FkkA mDr Bhe }kjk fLkfy; foLr`r tkWp vk[;k 28&9&2012 izLrqr dh xbZ tks fd 'kklukns'k ds vuq:i gSA mRrjnkrk izfroknh }kjk ekuuh; mPp U;k;ky; ds vkns'kksa o funsZ'kksa dk iw.kZr% ikyu fd;k x;k gSA lanfHkZr dsl esa rF; fHkUu gSA^^ 7. In paragraph 8 of the writ petition it is stated that various reports have been mentioned in suspension order to justify suspension order but copies of the reports and complaints made against the petitioner have not been supplied to the petitioner alongwith suspension order. It is also stated that no physical inquiry was made and it was cooked up sitting in the office. In reply thereto no specific stand has been taken in the counter-affidavit by stating that the copies of the enquiry reports and complaint were served upon the petitioner. 8. In paragraph 13 of the writ petition it is stated that after the suspension order no further detailed enquiry was conducted in order to find out the correctness of the allegations made in the suspension order whereas it is mandatory to conduct detailed inquiry as mentioned in the Government Order dated 29.7.2004. 8. In paragraph 13 of the writ petition it is stated that after the suspension order no further detailed enquiry was conducted in order to find out the correctness of the allegations made in the suspension order whereas it is mandatory to conduct detailed inquiry as mentioned in the Government Order dated 29.7.2004. Reply of this paragraph has been given in paragraph No. 12 of the counter-affidavit filed by the Regional Food Officer. The reply is vague and only fact finding enquiry before passing the suspension order has been taken note of. 9. Apart from this from the perusal of the cancellation order passed by the Sub Divisional Officer it transpires that last enquiry was made in the presence of the Sub Divisional Officer by the Supply Inspector and another person present and it is the Sub Divisional Officer who has suspended the agreement and later on cancelled. 10. In Puran Singh v. State of U.P. and others, 2010(3) ADJ 659 (FB), Full Bench of this Court has held that in view of Government Order dated 29.7.2004 full fledged enquiry has to be made. Full fledged enquiry means service of charge-sheet upon the fair price shop agent, enquiry report, complaint, if any, coupled with statements of the card holders but here in this case as has been stated in paragraph Nos. 8 and 13 of the writ petition the required procedure has not been followed, therefore, there is inherent lacking in the decision making process but this aspect of the matter has not been examined by the Divisional Commissioner. It may also be noticed that the Sub Divisional Officer who has suspended the agreement on the basis of the enquiry made by him has cancelled the agreement. It is settled that no one should be a judge of his own cause. Reference may be had in Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454 ; A.U. Kureshi v. High Court of Gujarat and another, JT 2009(7) SC 53. 11. So far as the stands taken in the counter-affidavit filed by the respondents are concerned, there may be substance on the factual aspect but since I have found that there was inherent lacking in the decision making process, therefore, I do not find it appropriate to address myself on that aspect and that can be dealt with by the competent authority in accordance with law. 12. 12. In view of the foregoing discussions, I am of the considered opinion that the the order dated 22.11.2012 passed by the Sub Divisional Officer, Bharthana and the order dated 17.8.2013 passed by the Commissioner, Kanpur Division, Kanpur in Appeal No. 269 of 2013 (Mithlesh Kumari v. State of U.P. and others) cannot be sustained in the eyes of law and the same are hereby quashed. The writ petition succeeds and is allowed. 13. It may be clarified that quashing the these orders will not be preclude the respondents to proceed in accordance with law. Since there was an interim order operating in favour of the petitioner, if the authorities decide to conclude further enquiry in accordance with law the interim order shall remain in operation till the conclusion of the enquiry. However, the petitioner will not misuse the same and if the petitioner commits any further irregularity in the meantime, the respondent authorities may be at liberty to take appropriate action in accordance with law.