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2018 DIGILAW 2774 (JHR)

Nand Kishore Ram v. State of Jharkhand

2018-12-17

RAJESH SHANKAR

body2018
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 03.06.2014 passed by the Sub Divisional Officer, Garhwa-respondent no.3, whereby the licence of the petitioner to run a shop under the Public Distribution System bearing licence no.3/1996 granted under the Bihar (now Jharkhand) Trade Articles (Licences Unification) Order, 1984 (in short ‘the Act, 1984’) has been cancelled. Further prayer has been made for quashing the order dated 29.06.2016 passed by the Deputy Commissioner-cum-District Magistrate Garhwa-respondent no.2, whereby the appeal preferred by the petitioner being Licence Appeal No.14/2015-16 has been rejected. The petitioner has also prayed for issuance of direction upon the respondents to immediately and forthwith resume the licence of the petitioner and further to supply food grains and other items to the petitioner for distribution of the same to the beneficiaries and the card holders as per the prescribed schedule. 2. The factual background of the case as stated in the writ petition is that the petitioner is a Fair Price Shop Dealer since 1996. The respondent no.3 issued a show cause notice to the petitioner vide memo no.207 dated 26th May, 2014, alleging, inter alia that on 25.05.2014 a surprise inspection of the fair price shop of the petitioner was carried out. During inspection, the said shop was found closed and the notice board having price chart of the goods available for sale was not displayed in the front of portion of the shop which is in violation of the provision of the Essential Commodities Act, 1955 (in short ‘the Act, 1955’). He was further directed to file his reply within a period of two days as to why his licence should not be cancelled. A reminder was also issued to the petitioner vide memo dated 29.05.2014, directing him to file his show cause reply within 24 hours. Thereafter, the petitioner filed his reply on 30.05.2014, denying the allegations made therein by specifically stating that he is a paralytic patient and on 25.05.2014 when the surprise inspection was carried out at his shop, he had gone to Garhwa for purchasing medicines. He further stated that the notice board was kept inside his shop because earlier the notice board was destroyed by some children of the village. He further stated that the notice board was kept inside his shop because earlier the notice board was destroyed by some children of the village. Thereafter, the respondent no.3 cancelled the licence of the petitioner on 03.06.2014 and further a direction was issued to lodge an FIR against the petitioner for committing offence u/s 7 of the E.C Act. The petitioner filed appeal before the respondent no.2 being Licence Appeal no.14/15-16 and the same was rejected on the ground that the petitioner did not prefer the appeal in prescribed format and also on the point of limitation. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that the respondent no.3, while passing the impugned order, has taken into consideration a complete new charge which was never informed to the petitioner so as to give appropriate reply to it and on this score alone the order dated 03.06.2014 is liable to be set aside. It is further submitted that the impugned order has been passed in violation of the principles of natural justice since the reply submitted by the petitioner has been totally ignored by the respondent no. 3. In the course of investigation of the case lodged against the petitioner, the villagers made an application before the Superintendent of Police, Garhwa on 17.07.2014 stating therein that the allegation levelled against the petitioner was false as they were getting the commodities as per prescribed norms. Moreover, in the criminal case, the police submitted the final form finding no evidence against the petitioner that he had violated any provision of the Act, 1955. It is further submitted that the respondent no.3, while passing the impugned order dated 03.06.2014, took into consideration the complaint made by some persons who were not even the card holders of the petitioner’s shop. It is also submitted that the appellate authority also rejected the appeal of the petitioner in a mechanical manner merely due to the reason that the appeal preferred by the petitioner was not in a prescribed format i.e. in the form of memo of appeal, therefore, the contents of the appeal preferred by the petitioner against the order passed by the respondent no.3 dated 03.06.2014 was not taken into consideration by the appellate authority and therefore the said action is bad in law. It is further submitted that the petitioner was also not been served with the copy of the inspection report dated 24.05.2014, causing serious prejudice to the petitioner in defending his case. 4. Per contra, the learned counsel for the respondents submits that the order of cancellation of PDS licence of the petitioner was passed on the basis of the evidences on record after affording adequate opportunity of hearing to the petitioner. The appeal preferred by the petitioner was dismissed by the respondent no.2 having found no infirmity in the order of the respondent no.3. It is further submitted that the impugned order, cancelling the PDS licence of the petitioner, is completely justified and legal. 5. Heard the learned counsel for the parties and perused the materials available on record. The thrust of the argument of the learned counsel for the petitioner is that the impugned order dated 03.06.2014 was passed in violation of the principle of natural justice. The respondent no.3 took note of a complete new charge, which was not even informed to the petitioner earlier and the said fact was also not taken into consideration by the appellate authority, who mechanically dismissed the appeal only on the ground that the same was time barred. 6. To appreciate the contention of the learned counsel for the petitioner, I have gone through the records of the case. It was alleged in the show cause notice issued vide Memo No.207 dated 26.05.2014 that at the time of inspection, the shop was found closed and also that the notice board-cum-price list was not found outside of the shop. Both the allegations were replied by the petitioner stating that at the relevant day he had gone to Garhwa to buy medicines and the notice board was kept inside the shop, as the same was earlier destroyed by some naughty children of the village. It was further alleged in the show cause notice that as per the statements of the beneficiaries, the petitioner was charging higher price of food grains than the rate fixed by the government and was giving less quantity of food grains to them. In the said show cause notice, neither the names of the complainants (beneficiaries) were mentioned nor any specific allegation was made against the petitioner. In the said show cause notice, neither the names of the complainants (beneficiaries) were mentioned nor any specific allegation was made against the petitioner. I find force in the submission of the learned counsel for the petitioner that there was no specific allegation against the petitioner in the show cause notice with regard to supply of less quantity of food grains and as such the same was not explained properly. The respondent no.3 in the impugned order dated 03.06.2014 heavily relied upon the statements of Rakesh Kumar, Sunil Yadav, Bhagmatiya Devi, Mina Devi, Sudeshwar Ram who had allegedly stated before the inspecting team that they had been given rice only for two months. However, neither the said specific allegation was informed to the petitioner in the show cause notice nor the inspection report was supplied to him. 7. The observance of the principles of natural justice is not a mere formality. It has been settled over the years that following the principles of natural justice by the administrative/quasi-judicial authorities is sine-qua-non which is treated as a mode of safeguard against any arbitrary decision being taken by the said authorities against private individual. Otherwise also, if by reasons of an order, any adverse civil consequence is to be faced by a person, the said order is required to be passed after affording a reasonable opportunity hearing to the affected person. 8. 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 misdeclaration 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.........” The Hon'ble Supreme Court further in the case of Sahara India (Firm) (1) Vs. 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.........” The Hon'ble Supreme Court further 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 v. 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. 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. reported in 2013 (1) JBCJ 460 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. In view of the discussions made herein above, the impugned order dated 3rd June, 2014 (Annexure-5) passed by the respondent no.3 is set aside. The order dated 29th June, 2016 passed by the respondent no.2, rejecting the appeal preferred by the petitioner on hyper technical ground is also set aside. Since the respondent no.2 while passing the order dated 29th June, 2016 has not gone into the merit of the case of the petitioner, liberty is given to the respondent no.3 to initiate a fresh proceeding in this regard and to pass an appropriate order after affording reasonable opportunity of hearing to the petitioner. 11. The writ petition is disposed of.