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2016 DIGILAW 3172 (ALL)

SUDHEER KUMAR v. STATE OF U. P.

2016-09-16

RAN VIJAI SINGH

body2016
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Indra Mani Tripathi learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri Amol Ranjan holding brief of Sri M.N.Singh, learned counsel for the gaon sabha. 2. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the orders dated 22.7.2016 and 26.8.2016 passed by the Sub-Divisional Officer, Baraut, District Baghpat and Joint Commissioner (Food) Meerut Region Meerut. 3. vide order dated 22.7.2016, the agreement of the petitioner to run fair price shop has been suspended on the ground that the petitioner has sold 600 litre kerosene oil illegally without distributing it to the cardholders, with respect to which, an F.I.R has been lodged in Kotwali Baghpat. Whereas vide order dated 26.8.2016, the Joint Commissioner (Food) has rejected the application of the petitioner for interim protection and fixed 23rd September, 2016 for hearing of the appeal. 4. While assailing these orders, learned counsel for the petitioner has made following submissions : (i) on account of lodging of an F.I.R. under Section 3/7 of the Essential Commodities Act 1955, (hereinafter referred to as ‘the Act’), the agreement of the petitioner to run fair price shop could not be suspended by the Sub-Divisional Officer in view of the law laid down by the Division Bench of this Court in Smt. Raj Kumari Singh v. State of U.P. and others, 2011(3) ADJ 638 . (ii) the suspension order cannot be passed for an indefinite period. (iii) since the impugned order of suspension has neither been passed under contemplation of inquiry nor pending inquiry, therefore the suspension order is patently illegal and deserves to be quashed. 5. Learned standing counsel contended that the petitioner cannot be permitted to avail two remedies simultaneously as against the order dated 22.7.2016, he has filed appeal and pending appeal, he has also challenged the order dated 22.7.2016 through this writ petition. Normally the argument of learned Standing Counsel has to be accepted but in view of the fact that the suspension order itself is without jurisdiction and patently illegal, therefore the writ petition is being entertained and with the consent of learned counsel for the representing parties is taken up for final disposal. 6. The facts of this case in brief are that the petitioner was appointed as fair price shop agent of Village Luhari, Block Baraut, Tehsil Sadar, District Baghpat. 6. The facts of this case in brief are that the petitioner was appointed as fair price shop agent of Village Luhari, Block Baraut, Tehsil Sadar, District Baghpat. While working as such, his agreement to run fair price shop was suspended on 22.7.2016 on the ground of black marketing of 600 litre kerosene oil. 7. Aggrieved by the aforesaid order, the petitioner, herein, has filed Appeal No. 15 of 2015-2016 (Sudhir Kumar v. State) under Order 28 (3) of U.P. Scheduled Commodities Distribution Order, 2004 (hereinafter referred to as ‘2004 Order’. Alongwith the appeal, the petitioner has also filed an application for interim protection under Order 28 (5) of 2004 Order. The Joint Commissioner (Food) has rejected the petitioner’s stay application and summoned the record for hearing of the appeal fixing 23.9.2016. 8. As has been noticed, hereinabove, the aforesaid order has been challenged on the ground that on account of lodging of F.I.R. under Section 3/7 of the Act, the agreement of the petitioner could not be suspended in view of the law laid down by this Court dated 30.10.09 passed in Writ Petition No. 28051 of 2008, Jagdish Narain Mishra v. State of U.P. and others, wherein it has been held that cancellation of the fair price shop agreement on the ground of the involvement of the petitioner in a criminal case is unsustainable in law. A Division Bench of this Court in Smt. Raj Kumari Singh (supra) affirmed the view taken by the learned Single Judge aforesaid and opined that mere filing of FIR cannot result in holding a fair price shop owner guilty of the offences charged and therefore, it is not open for the authorities to cancel the fair price shop licence on that basis. 9. Apart from the above, there is no provision either under the Scheduled Commodities Distribution Order, 2004 or under the Government orders issued thereunder empowering the competent authority to suspend or cancel the agreement to run fair price shop on the ground of the involvement of a fair price shop agent in a criminal case. 10. 9. Apart from the above, there is no provision either under the Scheduled Commodities Distribution Order, 2004 or under the Government orders issued thereunder empowering the competent authority to suspend or cancel the agreement to run fair price shop on the ground of the involvement of a fair price shop agent in a criminal case. 10. From going through the judgment it transpires that this Court has held that on account of lodging of F.I.R. agreement of the fair price shop agent cannot be cancelled and if the agreement of the petitioner to run fair price shop cannot be cancelled on account of lodging of F.I.R., then how the same can be suspended. In my opinion, the suspension order could not be passed merely on the ground of lodging of F.I.R. 11. Another ground of challenge of suspension order is that the suspension order has neither been passed under contemplation of inquiry nor pending inquiry, therefore it will continue for an indefinite period which is impermissible in the eyes of law. 12. The challenge to the suspension order on the aforesaid ground has substance as the Government order dated 29.7.2004 and 26.11.2014 covering the field of suspension and cancellation of the fair price shop agreement provides that the inquiry of cancellation has to be completed within a period of four weeks. 13. This Court in Shiv Vilas v. State of U.P. and others, 2016(2) ADJ 845 , considering this aspect of the matter taking note of the Division Bench judgment of this Court has observed as under : “4. Learned counsel for the petitioner states that in spite of extension of the due cooperation by the petitioner decision has not yet been taken and illegal suspension order is continuing. In the submission of the learned counsel for the petitioner agreement cannot be suspended for an unlimited period. In support of his submission he has placed reliance upon a Division Bench decision of this Court in Shiv Raj Singh v. State of U.P. and others, (2007 (66) ALR 360, wherein it has been held that in view of the Government Order which requires completion of the enquiry within one month, the agreement cannot be suspended for an indefinite period and the authorities are supposed to adhere to the requirement given in the Government Order. In paragraph 5 of the aforesaid judgment the Division Bench of this Court has observed as under: “In our opinion, in the existing context the flow of frivolous litigation arising due to in-action or apathy on the part of the Government Officers when the enquiry is not being concluded within the time schedule perceived by the said Government Order, it is high time that this Court may, in exercise of its jurisdiction under Article 226, Constitution of India, provide that in case the enquiry is not concluded within the time schedule contemplated under the relevant G.O., the suspension order shall automatically cease or shall be deemed revoked.” Same view has been taken by this Court in Smt. Anshu Bharti v. State of U.P. and others, (2009) 1 SWC 691 All) and Bhupendra and another v. State of U.P. and others, 2011(10) ADJ 607 , although while dealing with the provisions of another Statute but on principle these judgments shall also be applicable in the facts and circumstances of the case. Having heard the learned counsel for the parties and considering the law laid down by this Court in Shiv Raj Singh (supra) and other judgments, referred herein above, wherein it has been held that suspension cannot be passed for an indefinite period, the writ petition succeeds and is allowed...” 14. Under the service law also, there are rules meant for holding the disciplinary proceedings against Government employees and there is provision for passing the suspension order either under contemplation of inquiry or pending inquiry and where the suspension order has neither been passed under contemplation of inquiry nor pending inquiry, in that eventuality, this Court has quashed the order on the ground that the suspension order cannot be allowed to run for indefinite period. Reference may be had to the Division Bench judgment of this Court in Meera Tiwari (Smt.) v. Chief Medical Officer and others, 2001 (3) UPLBEC 2057 , wherein this Court has held as under: “3. From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending. 4. From the said rule it appears that a Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry. The impugned order of suspension does not refer to any contemplated inquiry or the fact that any inquiry is pending. 4. In that view of the matter, we are of the view that the order of suspension is against the provisions of Rule 4 of the U.P. Government Servant (Discipline and Appeal Rules, 1999 and the same cannot be sustained..........” 15. The same view has been taken in Radhey Shyam Srivastava v. State of U.P. and others, 2008(1) ADJ 466 , Smt. Anshu Bharti v. State of U.P. and others, 2008(9) ADJ 355 , Mool Chand Sharma and another v. State of U.P. and others (Writ-A No. 41861 of 2010, decided on 22.10.2013 and Suman Devi v. State of U.P. and others (WRIT-C No. 38648 of 2016,decided on 20.8.2016). 16. In view of foregoing discussions and considering the fact that the suspension order has been passed for indefinite period, in my opinion, the impugned order of suspension cannot be sustained in the eyes of law. 17. In the result, the writ petition succeeds and is allowed. The impugned order dated 22.7.2016 passed by the Sub-Divisional Officer Baghpat is hereby quashed. 18. So far as quashing of the order dated 26.8.2016 passed by the Joint Commissioner (Food) is concerned, since the impugned order of suspension has already been quashed, there is no need for passing any further orders and pending appeal filed by the petitioner is directed to be disposed of accordingly.