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2017 DIGILAW 714 (JHR)

Shiv Prasad Sahu v. State of Jharkhand

2017-04-19

APARESH KUMAR SINGH

body2017
JUDGMENT : Aparesh Kumar Singh, J. Heard learned counsel for the petitioner and the State. 2. Petitioner is a PDS licensee of fair price shop since 1989 bearing No. 6/89 (Annexure-1) at village Damdam, Block Hunterganj, District Chatra. On the basis of an inspection carried out on 2.6.2010 by the S.D.O Chatra, a show cause was issued bearing memo no. 941 dated 8.6.2010 (Annexure-2) containing the following charges :- (i) that certain card holders have alleged that only 33 kg of food items were distributed by the petitioner in lieu of which Rs.50 was charged ; PDS items of the month of April were not distributed but in the supply register, distribution of items were shown on 15,16 and 17th May, 2010. (ii) One Sonwatia Devi W/o card holder Chandar Bhuiyan had complained that food articles of the month of May have been lifted though shown in her card in April. Inquiry revealed that PDS food items were lifted for the month of April also. 3. Petitioner was asked to respond within 3 days. Vide Annexure 2/1 dated 29.6.2010 petitioner furnished his reply enclosing statement of certain card holders in his support. He further asserted that food items have been distributed in the month of April. In respect of the second charge he accepted it as a clerical mistake. The Licensing Authority cum S.D.O, Chatra, Respondent no.3 did not find his explanation satisfactory and cancelled the license by the impugned order dated 20.7.2010 (Annexure-5). On appeal, the Deputy Commissioner, Chatra has also upheld it by the impugned order dated 25.4.2012. 4. Learned counsel for the petitioner has assailed the impugned orders on the ground that the inquiry was not conducted in his presence. None of the cardholders have supported the allegations. Food items have been properly distributed in the month of April. Even Sonwatia Devi by way of an affidavit enclosed to the show cause, has refuted the charges vide Annexure-4. It is submitted that the first charge has not at all been proved. However, inspite of the fact that petitioner has accepted the second charge as clerical mistake, a harsh punishment of cancellation of license has been imposed by the Respondent Authorities, which is rather disproportionate to the misconduct. He submits that non-furnishing of the inquiry report has also acted to his prejudice though the allegations remained unsubstantiated as no cardholder has come forward to support the charges. He submits that non-furnishing of the inquiry report has also acted to his prejudice though the allegations remained unsubstantiated as no cardholder has come forward to support the charges. The impugned orders therefore require interference by this Court. 5. Learned counsel for the Respondent State has defended the impugned order. Counter affidavit has also been filed by them. Statements made at para 6 of the writ petition about non supply of the complaint and inquiry conducted behind petitioner's back have not been categorically refuted by the Respondents as per the statement made at para 13 of the counter affidavit. Learned counsel for the Respondent State has however submitted that petitioner being influential person of the area had gathered support of the cardholders after issuance of the show cause notice. The distribution of food items are reflected from the distribution register and the entries made in the cards of the beneficiaries. If on verification the allegations relating to distribution of edible items of the month of April and May have been found to be proved and the complaint made by Sonwatia Devi has also been admitted, the Licensing Authority has rightly taken the decision to cancel the license as a policy of zero tolerance is adopted in cases of irregularities found in the matter of distribution of PDS items. Therefore, there is no infirmity in the impugned order. 6. Considered the submission of the parties and the relevant materials on record. The impugned orders proceeded primarily on the acceptance of the petitioner of the mistake in the entries in the supply register compared to the card of Sonwatia Devi where the distribution of PDS items have been entered in the month of April though distributed in the month of May. So far as the first charge is concerned, there are no other findings to corroborate the allegation made in the impugned orders. Petitioner has categorically taken the stand that inquiry report was not served upon him nor the inquiry was held in his presence. Petitioner on his part in his show cause has tried to prove his innocence by relying upon the statements of certain cardholders including Sonwatia Devi. In the absence of furnishing of the inquiry report, the first charge also do not appear to be substantiated from perusal of the impugned orders. Petitioner on his part in his show cause has tried to prove his innocence by relying upon the statements of certain cardholders including Sonwatia Devi. In the absence of furnishing of the inquiry report, the first charge also do not appear to be substantiated from perusal of the impugned orders. However the second charge has been found to be corroborated from the entries in the distribution register and the card of Sonwatia Devi though she has resiled from having made any complaint later on. However in the aforesaid circumstances, the decision to cancel the license of the petitioner itself, which he is operating since 1989 appears to be rather harsh and disproportionate. 7. Therefore, this Court is of the opinion that the matter requires reconsideration on the quantum of punishment at the level of licensing authority/appellate authority. The matter is remanded on the aforesaid question to the Appellate Authority cum Deputy Commissioner, Chatra for passing a fresh order on the quantum of punishment to be imposed after giving one opportunity to the petitioner as well. Since the matter is being remanded on the limited question, the impugned orders contained at Annexure-5 dated 20.7.2010 passed by the S.D.O, Chatra and Annexure-6 dated 25.4.2012 passed by the Deputy Commissioner, Chatra should not come in the way of the licensing authority / appellate authority in reconsideration of the matter. 8. The writ petition is allowed in the manner and to the extent indicated herein above.