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2018 DIGILAW 113 (JHR)

Santosh Thakur v. State of Jharkhand

2018-01-15

RAJESH SHANKAR

body2018
ORDER : Both these writ petitions have been filed for setting aside the orders dated 26.4.2016 as contained in Memo No. 128 [Annexure-7 to W.P.(C) No. 2995 of 2016] and Memo No. 129 [Annexure-4 to W.P.(C) No. 3376 of 2016] passed by the respondent No.3 whereby, the petitioners' licenses for running the PDS shops have been cancelled. 2. The factual background of the case, as stated in the writ petitions, is that the licenses for running the PDS shops were granted to the petitioners. However, on the basis of certain complaints received against them, their PDS licenses were suspended vide Memos Nos. 41 and 44 respectively, both dated 19.2.2016, and show cause notices were issued to them for cancellation of their PDS licenses. The petitioners submitted their respective replies to the said show cause notices denying the allegations levelled against them. However, the PDS licensees of the petitioners were, cancelled by the respondent No. 3 vide the impugned orders contained in Memo Nos. 128 & 129 respectively, both dated 26.4.2016, which gives rise to filing of the present writ petitions. 3. Learned counsel for the petitioners submits that since the date of issuance of the PDS licenses to the petitioners, they duly followed each and every rule/regulation and never violated any term and condition of the Bihar Trade Articles (Licenses Unification) Order, 1984 [hereinafter referred to as 'the Order 1984']. It is further submitted that most of the complainants were not the card holders and they made false allegations against the petitioners due to village politics. On the contrary, several villagers and the card holders also informed the respondent No. 3 that the allegations levelled against the petitioners are false and baseless. Learned counsel for the petitioners puts much emphasis on his argument that after suspension of the petitioners' PDS licenses and issuance of the show cause notices to them vide Memos Nos. 41 & 44 respectively, both dated 19.2.2016, they filed their respective replies within ten days. However, the respondent No.3 while passing the impugned orders dated 26.4.201.6, relied upon the enquiry reports of the Block Development Officer, Manika dated 29.3.2016 and 2.3.2016 respectively. 41 & 44 respectively, both dated 19.2.2016, they filed their respective replies within ten days. However, the respondent No.3 while passing the impugned orders dated 26.4.201.6, relied upon the enquiry reports of the Block Development Officer, Manika dated 29.3.2016 and 2.3.2016 respectively. Though the said enquiry reports were prepared after issuance of the show cause notices to the petitioners and submission of their respective replies before the respondent No.3, however, the said enquiry reports dated 29.3.2016 and 2.3.2016 were never served upon the petitioners so as to enable them to properly respond to the allegations made therein against them. It is, thus, submitted that the impugned orders dated 26.4.2016 have been passed by the respondent No.3 in gross violation of the principles of natural justice and the same are liable to be quashed. 4. Per contra, learned counsel for the respondents submits that the petitioners have got alternative/efficacious remedy of appeal under the provisions of the Order, 1984. It is further submitted that the petitioners were given due opportunity of hearing by issuing the show cause notices to them. The respondent No.3, after due consideration of the replies submitted by the petitioners, has passed the impugned orders cancelling their PDS licenses, as several complaints were received against them regarding commission of irregularities in distribution of foodgrains among the beneficiaries, misbehaving with the card holders and demanding money for issuing ration cards etc. The• enquiry reports submitted by the Block Development Officer, Manika contain the statements of several beneficiaries alleging commission of various irregularities by the petitioners in distribution of foodgrains among the beneficiaries. 5. Heard learned counsel for the parties and perused the documents available on record. It appears that on the basis of the complaints received against the petitioners, their PDS licenses were ordered to be suspended by the respondent No. 3 and the show cause notices were issued to them vide letters dated 19.2.2016. The petitioners submitted their respective replies before the respondent No.3. On perusal of the impugned orders dated 26.4.2016 passed by the respondent No.3, it appears that he has based his order on the enquiry reports dated 29.3.2016 and 2.3.2016 respectively submitted by the Block Development Officer, Manika wherein the statements of several beneficiaries were recorded to the effect that the foodgrains were not regularly distributed among them by the petitioners. On perusal of the impugned orders dated 26.4.2016 passed by the respondent No.3, it appears that he has based his order on the enquiry reports dated 29.3.2016 and 2.3.2016 respectively submitted by the Block Development Officer, Manika wherein the statements of several beneficiaries were recorded to the effect that the foodgrains were not regularly distributed among them by the petitioners. In the counter affidavits filed in both the writ petitions, the respondents have not stated that the copies of the enquiry reports dated 29.3.2016 and 2.3.2016 respectively were served to the petitioners before passing the impugned orders dated 26.4.2016 cancelling the PDS licenses of the petitioners. Thus, in my considered view, the respondent No.3 committed an error in relying upon the said enquiry reports submitted by the Block Development Officer, Manika while passing the impugned orders dated 26.4.2016 without furnishing the copies of the same to the petitioners to enable them to controvert the allegations of irregularities made in the enquiry reports. The impugned orders dated 26.4.2016 appear to have been passed in violation of the principles of natural justice. 6. It is well settled. law that any administrative/quasi-judicial authority while passing order or issuing letter adversely affecting the right of a person, should take the said action judiciously after giving proper opportunity of hearing to the affected party. 7. The Hon'ble Supreme Court in the case of Kothari Filaments vs. Commissioner of Customs reported in (2009) 2 SCC 192 , has held as under:- "15. The Act does not prohibit application of the principles of natural justice. The Commissioner of Customs either could not have passed the order on the basis of the materials which were known only to them, copies whereof were not supplied or inspection thereto had not been given. He, thus, could not have adverted to the report of the overseas enquiries. A person charged with mis-declaration is entitled to know the ground on the basis whereof he would be penalised. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply........." 8. He may have an answer to the charges or may not have. But there cannot be any doubt whatsoever that in law he is entitled to a proper hearing which would include supply of the documents. Only on knowing the contents of the documents, he could furnish an effective reply........." 8. The Hon'ble Supreme Court in the case of Sahara India (Firm) (1) vs. CIT reported in (2008) 14 SCC 151 , has held as under: "18. Recently, in Canara Bank vs. V.K. Awasthy the concept, scope, history of development and significance of principles of natural justice have been discussed in extenso, with reference to earlier cases on the subject. Inter alia, observing that the principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights, the Court said: (SCC pp. 331-32, para 14) "14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 19. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 19. Thus, it is trite that unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The principle will hold good irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial." 9. This Court in the case of Suresh Kumar Sao vs. The State of Jharkhand & Ors., 2013(1) JBCJ 460 : 2013 (1) JLJR 209 and in the case of Bidya Devi vs. The State of Jharkhand, Secretary, Food and Civil Supplies Department & Ors. reported in 2015 (4) JLJR 685 , has quashed the impugned orders cancelling the P.D.S. licenses relying on the enquiry reports which were not supplied to the P.D.S. dealers. 10. The petitioners were never served the enquiry reports submitted by the Block Development Officer, Manika which have been referred by the respondent No. 3 in the impugned orders dated 26.4.2016. 11. Thus, on this score alone, the impugned orders dated 26.4.2016 as contained in Memo No. 128 [Annexure-7 to W.P.(C) No. 2995 of 2016] and Memo No. 129 [Annexure-4 to W.P.(C) No. 3376 of 2016] cannot be sustained in law and the same are, hereby, quashed and set aside. 12. However, the respondent No.3 is at liberty to pass fresh order in accordance with law, after serving the enquiry reports as well as the relevant documents (if any) and providing due opportunity of hearing to the petitioners. 13. Both these writ petitions are disposed of with the aforesaid observation.