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2017 DIGILAW 2393 (ALL)

Aajad Kumar v. State of U. P.

2017-10-23

SIDDHARTHA VARMA

body2017
JUDGMENT : SIDDHARTHA VARMA, J. 1. As the writ petition raises a pure question of law as to whether a licence to run a fair price shop could be cancelled simply because the fair price shop dealer did not submit his reply to the show cause notice, the learned Standing Counsel stated that he would not file any counter affidavit and would address only on the question of law as has been raised by the learned counsel for the petitioner. 2. After the petitioner's father died on 5.1.2015, the fair price shop which he was running was, under the relevant rules, allotted to the petitioner on 16.4.2015. Certain complaints were made against the allotment which were to the effect that the petitioner's father had, in fact, died issueless and, therefore, the petitioner would not be entitled for the allotment. 3. After certain enquiries, a show cause notice was issued to the petitioner on 31.12.2016 and, thereafter, as the petitioner could not file his reply, the allotment in his favour was cancelled on 6.4.2017. Aggrieved thereof, the petitioner has filed the instant writ petition and has made the following submissions:- I. The allotment made in favour of the petitioner could not have been cancelled on the basis of an ex parte report submitted by the Supply Inspector on 20.11.2016. II. Notices as were issued for the filing of the reply never reached the petitioner. III. In view of the fact that no reply was submitted to the show cause notice, the allotment made in favour of the petitioner could not cancelled. IV. Even though, the petitioner had not submitted his reply to the show cause notice dates should have been fixed for examining the witnesses of the complaints. V. He has submitted that even, in case, where evidence is closed and a case is directed to proceed ex parte the defendant/opposite party gets a right to cross-examine the witnesses of the plaintiffs/complainants. He has cited AIR 1964 SC 993 : (Arjun Singh Versus Mohindra Kumar and Others) and has stated that even if a defendant's, application under Order IX Rule 7 of the C.P.C. is rejected it gives him a right to proceed from where proceedings were ordered to proceed ex parte converting an ex parte hearing into a bi parte one. VI. VI. He has also referred to the provisions of Order 8 Rule 10 of the C.P.C. and has submitted that the Supreme Court in AIR 1989 SC 162 : (Modula India Versus Kamakshya Singh Deo) has held that the non-filing of a written statement does not mean that the plaintiff's suit had to be decreed as a matter of course. It has been held therein that the defendant had all the right to cross examine the plaintiffs and his witnesses. Further, he has stated that the Supreme Court has held that the Court had to, after looking into the evidence of the plaintiffs and the cross examination done by the defendants of the plaintiffs witnesses come to a definite conclusion after framing issues as to what exactly had to be done with the Suit. VII. Any statement which might have been taken during the preliminary enquiry after which the show cause was issued could not have been used against the petitioner as they were all taken behind the back of the petitioner. To buttress his submission learned counsel relied on AIR 1993 (3) SCC 259 : (D.K. Yadav Versus J.M.A. Industries Ltd.) VIII. The petitioner's counsel relying on the Full Bench decision of Puran Singh Versus State of U.P. and Others reported in 2010 (3) ADJ 659 submits that the Government Order dated 29.7.2004, by which enquiries are made, clearly envisages a full fledged enquiry pursuant to a show cause notice and it does not contemplate a cancellation of an allotment order simply because the reply had not been given. 4. In reply, learned Standing Counsel has submitted that a perusal of the ex parte report as had been submitted by the Supply Inspector makes it clear that the petitioner was not the son of Bihari Yadav whose shop he had got allotted after his death. Learned Standing Counsel, further, submitted that when no reply was filed by the petitioner then the Sub Divisional Magistrate had no other option but to cancel the agreement/licence. He has further submitted that against the cancellation of an agreement/licence, the petitioner had an alternative remedy of filing an appeal and that this Court shall not interfere with the impugned order. 5. Having heard the learned counsel for the parties, I am of the view that the writ petition deserves to be allowed. He has further submitted that against the cancellation of an agreement/licence, the petitioner had an alternative remedy of filing an appeal and that this Court shall not interfere with the impugned order. 5. Having heard the learned counsel for the parties, I am of the view that the writ petition deserves to be allowed. When the writ petition is not being heard on any disputed question of fact and is being decided only on a pure question of law which has been raised by the petitioner I do not deem it proper to send the petitioner to avail the alternative remedy of appeal. 6. In AIR 1989 SC 162 : (Modula India Versus Kamakshya Singh Deo), it has been held that the right of the defence to cross examine the plaintiff's witnesses should not be looked upon as a part of the defendant's strategy, but should be considered as a requirement of law without which the plaintiffs evidence cannot be acted upon. Therefore, even if the defendant/delinquent does not file a reply a date should be fixed when he should be allowed to cross examine the witnesses of the plaintiff/complainant and should be allowed to lead his evidence. 7. It is never mandatory upon a Court or an Authority to pass a decree or an order in a given case simply because a written statement or a reply is not filed. If the reply is not filed, the Court is not bound to accept the statement contained in the plaint or a complaint. Upon non-filing of a reply, the Court or the Authority has to exercise its discretion as to how the matter should be further proceeded with. 8. In 2010 (7) ADJ 529 (DB) : (Kishore Singh Versus State of U.P.), this Court has held specifically in paragraph 15:- "The mere expression of the delinquent that he does not want to say anything beyond the reply he had submitted would not mean that the charges stand proved. Even in a case where after service of charge sheet, no reply is submitted by the delinquent and/or the delinquent does not participate in the inquiry even then the department has to prove the charges on the basis of documentary evidence, material on record and by adducing oral evidence, if required. Simply because the delinquent has not participated in the inquiry, it would not be presumed that the charges stand proved. Simply because the delinquent has not participated in the inquiry, it would not be presumed that the charges stand proved. To prove the guilt or the charges against the delinquent, the inquiry is to be conducted and nonparticipating in the inquiry or non-availing of the opportunity by filing reply or appearing in the inquiry would not be taken as admission on the part of the delinquent of the of charges levelled against him." and in 2011 (5) ADJ 177 : (Mahesh Narain Gupta Versus State of U.P. and Others), this Court has held in paragraph 19:- "In no case, approach of the Enquiry Officer that as no reply has been submitted, the charges will have to be automatically proved can be approved. This will be erroneous. It has been repeatedly said that disciplinary authority has a right to proceed against delinquent employee in ex parte manner but some evidence will have to be collected and justification to sustain the charges will have to be stated in detail. The approach of the enquiry officer of automatic prove of charges on account of non filing of reply is clearly misconceived and erroneous. This is against the principle of natural justice, fair play, fair hearing and, thus, enquiry officer has to be cautioned in this respect. " 9. In the instant case, if the impugned order dated 6.4.2017 is perused, it would be evident that the Sub Divisional Magistrate, after observing that a notice was issued to the petitioner for filing of a reply, which was not filed, had cancelled the allotment order after taking note of the fact that no reply was filed. This patently is an erroneous approach. Had the petitioner not filed a reply then the next course open for the cancelling authority in pursuance of the Full Bench decision reported in Puran Singh (supra) should have been that it should have fixed a further date for the complainant to lead his evidence. The petitioner should have also been allowed to lead his evidence. He should have been permitted to cross-examine. Upon being satisfied with the evidence, the Authority could have thereafter passed an appropriate order. 10. Under such circumstances, the writ petition is allowed. The order dated 6.4.2017 is quashed and the matter is remanded back to Sub Divisional Magistrate to decide it afresh.