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2017 DIGILAW 3033 (ALL)

AJAY PAL SINGH v. STATE OF U. P.

2017-12-22

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—Heard learned counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1, 2, 3, 4 and 5 and Sri O.P. Singh Senior Advocate assisted by Sri Shams-uz-zaman for the respondent No. 6. Two pure questions of law have been raised by the petitioner’s counsel : I. As to whether the Authority concerned could have cancelled the agreement of the fair price shop only on the basis of the fact that no reply was given by him and; II. Whether the canceling Authority could consider the past record of the petitioner for cancelling the Fair Price Shop. 2. The learned Standing Counsel has chosen not to file any counter-affidavit and has made his submissions. 3. On 15.11.2016, the petitioner was served with a charge-sheet which had, in effect, five charges : I. The petitioner did not open his Fair Price Shop on time and also did not distribute the essential commodities. II. The petitioner did not give the stipulated quantity of food grain and also misbehaved with the customers. III. On the pretext of supplying of gas cylinders and preparing ration cards, the petitioner made illegal demands from various card holders. IV. The petitioner never displayed the information chart giving the prices etc. of the food grains. V. After the Fair Price Shop of the petitioner was suspended on 17.10.2016, the petitioner had on 2.11.2016 with the help of an E-riksha taken out around 3.5 quintals of rice and had sold it in the open market and for that a First Information Report was also lodged. 4. The petitioner had replied to the charge-sheet on 30.11.2016. The agreement to run the fair price shop was cancelled on 20.12.2016 and the appeal as was filed was dismissed on 16.5.2017. Aggrieved thereof the petitioner has filed the instant writ petition. 5. The petitioner’s counsel submitted that if the impugned order dated 20.12.2016 passed by the Sub Divisional Officer Badhaot District Bagpat is seen then it becomes evident that none of the charges as were framed against the petitioner were either dealt with or were proved and findings have been arrived at as if the petitioner had not filed any reply. 6. The petitioner’s counsel submitted that if the impugned order dated 20.12.2016 passed by the Sub Divisional Officer Badhaot District Bagpat is seen then it becomes evident that none of the charges as were framed against the petitioner were either dealt with or were proved and findings have been arrived at as if the petitioner had not filed any reply. 6. Learned counsel for the petitioner further submitted that even if the authorities were not taking his reply into account they ought to have allowed him at least to lead his evidence and cross-examine the witnesses of the complainant. 7. Furthermore, the learned counsel for the petitioner cited Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162 , wherein it has been held that the defendant had all the right to cross-examine the plaintiffs and their witnesses and only after the Court looked into the evidence of the plaintiffs and the cross-examination done by the defendants of the witnesses could it come to a definite conclusion after framing of issues as to what fate of the case would meet. He further cited a Full Bench decision in Puran Singh v. State of U.P. and others, 2010(3) ADJ 659 and submitted that as per the Government Order dated 29.7.2004 enquiry had to be conducted in the manner it was envisaged by the Government Order and it could not have been put to rest simply because the petitioner had not submitted his reply. This according to the petitioner could not have been done and he relied on Kishore Singh v. State of U.P., 2010(7) ADJ 529 (DB), wherein 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 non-participating 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 Mahesh Narain Gupta v. State of U.P. and others, 2011(5) ADJ 177 , 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.” and stated that if the guilt or the charges against the petitioner had to be proved and the petitioner did not file his reply then it would not mean that he had admitted the charges which were levelled against him. 8. As a matter of fact, the Authority enquiring into the charges had to prove the charges on the basis of other documentary evidences, material on record and also by adducing other oral evidence. He, further submitted that as has been held in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , that even though a defendant’s application under Order IX Rule 7 is rejected. It gives the defendant a right to proceed from where it was ordered that the proceedings were to proceed ex parte. 9. He, further submitted that as has been held in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 , that even though a defendant’s application under Order IX Rule 7 is rejected. It gives the defendant a right to proceed from where it was ordered that the proceedings were to proceed ex parte. 9. Learned counsel for the petitioner also cited Baikuntha Nath Gupta v. (Smt.) Janki Devi and others, 2003 (95) RD 331 and submitted that just as a Court does not look into the events anterior to the event which had led to the passing of an ex parte decree while dealing with an application under Order IX Rule 13, the Sub Divisional Magistrate also should not have looked into the conduct and the earlier events which were anterior in point of time to the events which had led to the charge-sheet which was submitted against the petitioner. 10. I have heard the learned counsel for the parties and gone through the record of the writ petition and I am of the view that the grounds which have been taken by the Sub Divisional Magistrate while passing the order canceling the licence to run the Fair Price Shop were baseless. Definitely, the Sub Divisional Magistrate could not have cancelled the licence to run the Fair Price Shop by simply saying that because the petitioner had not submitted his reply he had admitted his guilt. 11. A perusal of the order clearly shows that because, the petitioner had in the opinion of the Sub Divisional Officer not submitted his reply the charges were proved and the agreement was cancelled. In the end the petitioner’s counsel submitted that around 14 events of the past had been taken into account to cancel the shop of the petitioner. 12. In the instant case, a bare perusal of the impugned order passed by the Sub Divisional Magistrate shows that what weighed on his mind was that in the past on 14 earlier occasions the petitioner had erred. The Appellate Court also did not consider the submissions as were made by the petitioner and dismissed the appeal. 13. The Authority which is performing a qausi judicial functioning has to function judicially. The Appellate Court also did not consider the submissions as were made by the petitioner and dismissed the appeal. 13. The Authority which is performing a qausi judicial functioning has to function judicially. Simply by saying that the petitioner i.e. Fair Price Shop dealer had not submitted his reply and therefore the licence should be cancelled was wrong on the part of the Sub Divisional Magistrate. It was his bounden duty : I. To direct the complaints to lead their evidence; II. He should have given an opportunity to the Fair Price Shop Dealer(the petitioner) to cross-examine the witnesses of the complaints III. The petitioner should have also been allowed to lead his evidence. IV. The complainants should have been allowed to cross-examine the witnesses of the defence. V. If any documentary evidence was produced then the same should have been proved as per law. VI. For doing the above, the Sub Divisional Magistrate should have fixed a date and a place. VII. And only thereafter the Sub Divisional Magistrate should have come to a conclusion as to what had to be done with the licence/agreement of the petitioner to run the Fair Price Shop. 14. Furthermore, I am of the definite view that the evidence and the material on the basis of which charges were framed should have accompanied the charges. Upon a close scrutiny of the order I find that none of the five charges as were framed by the Sub Divisional Magistrate were proved. 15. Under such circumstances, I am of the view that the writ petition deserves to be allowed. The orders dated 20.12.2016 and 16.5.2017 are set aside. 16. The writ petition is, accordingly, allowed.