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2016 DIGILAW 3276 (ALL)

LAL BAHADUR GUPT v. STATE OF U. P.

2016-09-23

RAN VIJAI SINGH

body2016
JUDGMENT : Hon'ble Ran Vijai Singh, J. Heard Sri M.M. Srivastava, learned counsel for the petitioner, learned standing counsel for the State-respondents and Sri A.K.Srivastava holding brief of Sri R.C.Upadhyay, learned counsel for the gaon sabha. Through this writ petition, prayer has been made to issue a writ of certiorari quashing the order dated 7.9.2016 passed by the Sub-Divisional Officer, Tehsil Sadar, District Azamgarh by which the petitioner's agreement to run fair price shop has been cancelled. While assailing the aforesaid order, learned counsel for the petitioner submitted that the impugned order suffers from breach of principle of natural justice as proper opportunity was not offered to the petitioner before passing the impugned order. It is also submitted that even if reply was not filed, the Sub-Divisional Officer was under obligation to discuss the charges and getting it proved before cancelling the agreement. Learned Standing Counsel as well as counsel for the gaon sabha have raised preliminary objection with regard to the maintainability of the writ petition. In their submissions, the writ petition should be dismissed on the ground of alternative remedy as the petitioner has got remedy of appeal under Order 13 (1) of U.P. Essential Commodities (Regulation of Sale and Distribution Control) Order, 2016. So far as preliminary objection of the learned Standing Counsel is concerned, there is no absolute bar in entertaining the writ petition, even where there is a remedy of appeal etc. The Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks ( 1998 (8) SCC 1 ) has held that in case the order is without jurisdiction or the same has been passed in breach of principles of natural justice, the writ petition should not be thrown on the ground of alternative remedy, therefore the writ petition is entertained. With the consent of learned counsel for the parties, this writ petition is taken up for final disposal. The facts of this case in brief are that the petitioner was appointed as fair price shop agent of Village Tisaura, Block Jahanaganj, Tehsil Sadar, District Azamgarh. His agreement to run fair price shop was cancelled by the Sub-Divisional Officer on 7.9.2016 on the ground of non-supply of scheduled commodities to the antodhyay cardholders. The facts of this case in brief are that the petitioner was appointed as fair price shop agent of Village Tisaura, Block Jahanaganj, Tehsil Sadar, District Azamgarh. His agreement to run fair price shop was cancelled by the Sub-Divisional Officer on 7.9.2016 on the ground of non-supply of scheduled commodities to the antodhyay cardholders. From the perusal of the impugned order, it transpires that few antodhyay cardholders have made their statement regarding irregular distribution of the scheduled commodities and on that basis, the petitioner's agreement to run fair price shop was suspended on 20.8.2016. The petitioner was granted a fortnight time to file reply. It is submitted by learned counsel for the petitioner that no notice was received by him and impugned order of cancellation has been passed on the ground that more than twenty one days have expired and the petitioner has not filed any reply, therefore the Sub-Divisional Officer has deemed the charges levelled against the petitioner proved. Learned counsel for the petitioner submits that in view of para 5 of the government order dated 29th July, 2004, which reads as under:- ^^5- tkap dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk izdj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.knks"k ds vk/kkj ij ,d ^^Lihfdax vkMZj** tkjh fd;k tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk pkfg, fd lEcfU/kr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn nqdkunkj us tkap esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj mi;ksx u fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tkap esa lg;ksx ugha fd;kA** Always one initial notice and another final notice has to be given/served upon the fair price shop agent. Further in the submission of learned counsel for the petitioner, in this case, alleged notice was given only on one occasion that too was not served upon the petitioner. Therefore the second notice ought to have been issued in the clear words that no further time shall be granted for filing reply but here in this case, nothing has been done. Therefore the second notice ought to have been issued in the clear words that no further time shall be granted for filing reply but here in this case, nothing has been done. It has also been contended that mere non filing of reply was not sufficient to arrive at the conclusion that the petitioner has accepted the charges and the charges are proved. The submission is that even in absence of the reply, the Sub-Divisonal Officer ought to have discussed the charges separately along with supporting material and thereafter he could record the finding that the charges are proved. Here in this case, the Sub-Divisional Officer has only presumed proving of the charge on the ground of non-filing of the reply by the petitioner. The Division Bench of this Court, in which I was also one of the member, in Ashmohammad Vs. State of U.P. and others (Writ-C No. 13563 of 2011, decided on 11.3.2011) has held that even in absence of the reply, the Sub-Divisional Officer was required to record the finding on merit. The same view has been reiterated by this Court in Jagdish Rai Vs. State of U.P. And others (Writ-C 16848 of 2014, decided on 3.5.2016) wherein following observation has been made :- The Sub Divisional Officer in the concluding part, has observed that since the fair price shop agent has not filed his reply, therefore charges appears to be proved. In my opinion, once the agreement was cancelled, it leads to civil consequences therefore before passing such order, the charges on which action has been taken, were required to be proved, even in absence of the reply, taking note of the statements of the complainants and other materials supporting the charges. Here in this case, admittedly the Sub-divisional Officer has not applied his mind to the charges levelled against the petitioner and the material in support thereof for proving the charges and he has only presumed the proving of the charge on account of the fact that the petitioner has not filed reply. As has been noticed hereinabove in the case of Ashmohammad as well as Jagdish Rai (supra), even in absence of the reply, the Sub-Divisional Officer has to discuss each and every charge separately with the supporting material in order to prove the charges and thereafter he ought to have recorded the finding with regard to proving of the charge. As has been noticed hereinabove in the case of Ashmohammad as well as Jagdish Rai (supra), even in absence of the reply, the Sub-Divisional Officer has to discuss each and every charge separately with the supporting material in order to prove the charges and thereafter he ought to have recorded the finding with regard to proving of the charge. In this case, no such procedure has been adopted. In view of foregoing discussions, in my considered opinion, the impugned order dated 7.9.2016 passed by the Sub-Divisional Officer, Tehsil Sadar, District Azamgarh cannot be sustained in the eyes of law. In the result, the writ petition succeeds and is allowed. The impugned order dated 7.9.2016 passed by the Sub-Divisional Officer, Tehsil Sadar, District Azamgarh is hereby quashed. The Sub-Divisional Officer is directed to serve the charge-sheet to the petitioner with the material which has to be relied upon in support of the charges i.e. statements of the cardholders, affidavits and inquiry report if any within a period of two weeks from the date of receipt of certified copy of the order of this Court and the petitioner will have two weeks thereafter to file reply. Thereafter, the Sub-Divisional Officer shall conclude the inquiry expeditiously in accordance with law. The petitioner is also directed to cooperate with the inquiry.