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2016 DIGILAW 161 (TRI)

Chiru Ranjan Roy v. State of Tripura

2016-07-27

S.TALAPATRA

body2016
JUDGMENT : Heard Mr. A.K. Bhowmik, learned senior counsel assisted by Mr. R. Datta, learned counsel appearing for the petitioner as well as Mr. S. Chakraborty, learned Addl. G.A. appearing for the respondents No.1, 2, 3 and 4 and Mr. B. Dutta, learned counsel appearing for the respondents No.5 and 6. 2. By means of this writ petition, the interim order of suspension of dealership of Fair Price shop by the memorandum No.F.VI(30)/SDM/FOOD/MNP/2012/2042-52 dated 18.12.2015 issued by the respondent No.4 (Annexure-5 to the writ petition), the appellate order No.F.8-2(2)-FOOD(PD)/DF/2015-16/2453-54 dated 17.02.2016 issued by the respondent No.2 (Annexure-8 to the writ petition) and the further order, consequential to the order dated 17.02.2016 under the memorandum No.F.VI-1(30)/SDM/FOOD/MNP/247-51 dated 20.02.2016 issued by the respondent No.4 (Annexure-9 to the writ petition) have been challenged by the petitioner. 3. The essential fact for appreciating the challenge may be noted at the outset. The undisputed fact is that the petitioner was appointed as the licensee for the Fair Price shop namely Katlamara Fair Price shop under Mohanpur Sub-Division. The said license has been suspended by the said memorandum dated 18.12.2015 on allegation of shortage of 315 kgs of rice of various categories. The card holders of the said Fair Price shop have been tagged with the nearby Bairagipara Fair Price shop for averting inconvenience and protecting the interest of those card holders. Against the said order dated 18.12.2015, one appeal was filed to the appellate authority, the Principal Secretary, Food, Civil Supplies and Consumer Affairs Department, Govt. of Tripura (hereinafter referred to as the appellate authority). 4. By the order dated 17.02.2016, the said appeal was dismissed on affirming the memorandum dated 18.12.2015 issued by the respondent No.4 with further direction to complete the proceeding by a speaking order which was initiated by issuing a show cause notice dated 09.11.2015 (Annexure-3 to the writ petition) by the respondent No.4. From the said show cause notice dated 09.11.2015 (Annexure-3 to the writ petition), it would be apparent that on a tip-off, the inspecting officers under the SDM, Mohanpur inspected the Kathlamara FPS on 06.11.2015 at about 8.30 A.M. to verify the physical stock of the said FPS and the books of account. From the said show cause notice dated 09.11.2015 (Annexure-3 to the writ petition), it would be apparent that on a tip-off, the inspecting officers under the SDM, Mohanpur inspected the Kathlamara FPS on 06.11.2015 at about 8.30 A.M. to verify the physical stock of the said FPS and the books of account. On scrutiny of the records, it appeared to the Inspecting Officers that the dealer, the petitioner herein, had lifted a total 16265 Kgs of rice in 326 bags comprising APL/PG/AAY categories, for the month of November 2015 on 04.11.2015 from Mohanpur Govt. Food Go-down. But, after physical verification of the stock, the Inspecting officers found a total 319 bags of rice in the FPS, which indicated a physical stock of only 15,950 Kgs of rice as one bag contains 50 Kgs. The Inspecting officers detected a clear shortage of 7 bags of rice weighing approximately 315 kg. The Inspecting officers received all the stock registers and papers in respect of the stock of rice in their custody and filed a report to the Licensing Authority [the Sub-Divisional Magistrate, Mohanpur Sub-Division] on 09.11.2015. On the basis of the said report, the licensing authority had issued the said show cause notice dated 09.11.2015. 5. In response to the said show cause notice, the petitioner has stated that since no physical verification has been carried out the estimate of shortage as made by the inspecting officers cannot be relied. Had there been a physical verification by way of weighment, the stock as he had lifted would have been found in his stock maintained in the said fair price shop. He has further stated that on verification of the stock registers as received by the inspecting officers would not come forth that there was any shortage and as such carrying out of physical verification of the stock and tallying the same with the stock-registers in respect of the rice he lifted on 04.11.2015 was highly essential for coming to a conclusion in respect of shortage. However, with the said reply, the licensing authority was not satisfied. By the memorandum dated 18.12.2015, the licensing authority suspended the license of the petitioner under Clause 3(2)(B) of the Tripura Foodgrains (Distribution) Control Order 1972, ''temporarily until further order''. Against the said order as stated earlier, the petitioner preferred an appeal to the Principal Secretary, Food, Civil Supplies and Consumer Affairs Department, Govt. By the memorandum dated 18.12.2015, the licensing authority suspended the license of the petitioner under Clause 3(2)(B) of the Tripura Foodgrains (Distribution) Control Order 1972, ''temporarily until further order''. Against the said order as stated earlier, the petitioner preferred an appeal to the Principal Secretary, Food, Civil Supplies and Consumer Affairs Department, Govt. of Tripura almost on the similar grounds. 6. However, at the time of hearing, the petitioner took an additional ground that one statement was obtained from him under duress on the same date, that is on 06.11.2015, by the Inspecting Officers where he had to state that there was a shortage of 315 Kgs of rice. After hearing the petitioner at length, by the order dated 17.02.2016, the appellate authority had occasion to observe as under: “6. While disposing of this Appeal-Petition, the undersigned, as per statutory provision, has given the appellant a patient hearing on 15.02.2016, when he could not deny the fact that he admitted the shortage during the inspection in his FPS. He also identified the signature which he put on the statement taken during the inspection. He also admitted his statement given before the Licensing Authority (SDM, Mohanpur) during the personal hearing taken on 15.12.2015 under his signature. He, through his counsel, only submitted that he made all those admissions under pressure of the inspecting authorities. He further contended that since none of the ration card holders had submitted any complaint against him, his license should not have been suspended. This plea of the appellant is not maintainable as because if there had been any incident of pressure, he could have been taken the matter to the knowledge of the SDM by filing a complaint soon after the inspection completed. Moreover, there certainly had been no pressure upon the appellant when he submitted his plea before the SDM during the personal hearing. 7. On perusal of records on file, the undersigned is convinced that shortage of 7 bags of rice in the physical stock of the FPS was detected during the said inspection. The appellant has himself admitted this by writing a statement under his signature. Though, records clearly mention that the appellant lifted the entire stock of 16,265 Kgs of rice from Mohanpur Govt. Godown in a total 326 bags (APL rice in 80 bags, PG rice in 188 bags and AAY rice in 58 bags). The appellant has himself admitted this by writing a statement under his signature. Though, records clearly mention that the appellant lifted the entire stock of 16,265 Kgs of rice from Mohanpur Govt. Godown in a total 326 bags (APL rice in 80 bags, PG rice in 188 bags and AAY rice in 58 bags). But only 319 bags were found present in the FPS during inspection. Hence, the appellant failed to explain the shortage of 7 bags(326-319) of rice which amounts to 315 Kgs as detected. 8. In view of the above fact, the instant appeal-petition of the appellant is disposed of upholding the Memorandum No.2042-52 dated 18.12.2015 of the SDM, Mohanpur with a direction to the Licensing Authority to complete the proceeding, by a speaking order, which was initiated by issuing Show Cause Notice vide 1025-26 dated 09.11.2015 issued by the Licensing Authority.” In terms of the said appellate order dated 17.02.2016 (Annexure-8 to the writ petition), the licensing authority passed the memorandum dated 20.02.2016 (Annexure-9 to the writ petition) by enforcing the interim suspension order of the dealership of the petitioner. 7. Mr. A.K. Bhowmik, learned senior counsel appearing for the petitioner has quite strenuously argued before this court that the entire proceeding has been handled with whim, not in compliance with the principles of natural justice. He has pointed out further that in absence of any weighment it cannot be assumed there was any physical or actual verification of the stock. Number of the bags can not indicate to the actual storage. 8. From the other side, Mr. S. Chakraborty, learned Addl. G.A. has submitted that the order of suspension as passed is interim in nature and subject to the final outcome of the proceeding as initiated in respect of the petitioner. During pendency of the writ petition, the petitioner has been asked further to show cause by the memorandum No.F.VI(30)/SDM/FOOD/MNP/2012/765 dated 17.06.2016 (Annexure-R/2 to the counter-affidavit filed by the respondents No.1-4). The said memorandum was issued on seizure of 29 bags of grade-A rice from one Swapan Roy, resident of Bairagipara on 05.09.2015. Since a new allegation has been levelled against the petitioner by the said memorandum dated 17.06.2016, the petitioner was afforded opportunity to show cause. 9. Mr. The said memorandum was issued on seizure of 29 bags of grade-A rice from one Swapan Roy, resident of Bairagipara on 05.09.2015. Since a new allegation has been levelled against the petitioner by the said memorandum dated 17.06.2016, the petitioner was afforded opportunity to show cause. 9. Mr. Bhowmik, learned senior counsel having referred to the memorandum as stated has contended that when the court is in seison of the matter, such action of the respondents is contumacious in nature. Therefore, the court is required to interfere with such action of the respondents. However, despite the fact that the counter-affidavit was filed on 22.07.2016, there has been no prayer from the petitioner that he would challenge the said show cause notice. In absence of any challenge, on the face of the records and in this stage of the proceeding this court may not examine that aspect of the matter. 10. Having regard to the records as placed with the writ petition and the counter-affidavits, this court is of the view that in this stage, this court should not interfere with the inquiry as has been initiated by the respondent No.4. There is no glaring infirmity to interfere with the interim order as such and hence, this court is of the further opinion that this writ petition does not deserve any further consideration and accordingly it stands dismissed. 11. Before parting with the records, the respondent No.1, 2, 3 and 4 are directed to complete the proceeding within 4(four) months from today on affording due opportunity to the petitioner to submit his reply in terms of the fresh show cause notice dated 17.06.2016. The respondent No.4 shall fix the date for filing such reply within 7(seven) days from the day of receipt of the copy of this order. A copy of this order be supplied to Mr. S. Chakraborty, learned Addl. G.A. for transmission.