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2018 DIGILAW 314 (ALL)

BHURE SINGH v. STATE OF U. P.

2018-02-06

SANGEETA CHANDRA

body2018
JUDGMENT : 1. This writ petition has been filed by the petitioner challenging the order dated 11.01.2018 canceling the fair price shop licence issued by the Sub Divisional Magistrate, Gunnaur, district Sambhal. 2. It is the case of the petitioner that one sitting M.L.A. of Bhartiya Janta Party arrayed as respondent No. 4 in this writ petition and representing the Constituency of Vidhan Sabha, Gunnaur, district Sambhal had written to the Chief Minister of the State that he had found in his local inspection of his Constituency that several fair price shop licensees of various villages were not distributing the Scheduled Commodities in accordance with law, and therefore, a request was made by the said M.L.A. that a proceeding be initiated against such fair price shop licensees and their fair price shop licence be cancelled. 3. It has been alleged in the writ petition and also argued by the learned counsel for the petitioner that on similar grounds he had filed Writ C No. 43908 of 2017 (Smt. Omwati vs State of UP and others), which has been entertained by this Court and detailed order has been passed setting aside the cancellation order and leaving it open for the Sub Divisional Magistrate, Gunnaur, District Sambhal to proceed against the petitioner in accordance with the procedure prescribed under the Government Order dated 29.07.2004. 4. It has also been submitted by the learned counsel for the petitioner that from a bare perusal of the order dated 11.01.2018, it is evident that the Sub Divisional Magistrate has not applied his independent mind, but has referred to the report submitted by the Supply Inspector and passed the impugned order because in the first paragraph of the impugned order, mention has been made that several complaints were received on the basis of which, an on the spot inspection was carried out of the village concerned, and thereafter a charge sheet was issued to the petitioner on 22.07.2017. A show cause notice was issued on 24.08.2017, which was received by the petitioner on 26.08.2017, but the petitioner did not reply, and therefore, it was presumed that the petitioner had nothing to say in the matter. A show cause notice was issued on 24.08.2017, which was received by the petitioner on 26.08.2017, but the petitioner did not reply, and therefore, it was presumed that the petitioner had nothing to say in the matter. Thereafter the Licensing Authority has proceeding to consider the charges mentioned in the charge sheet and the reply submitted by the petitioner and finally in the operative portion, he has mentioned his conclusion as to why he thinks the licence of the petitioner should be cancelled. 5. It is the case of the petitioner that in case, the petitioner had not replied to the charge sheet as has been mentioned in the impugned order, then his reply as mentioned in the impugned order could not have been considered at all as there was no reply. 6. From a further examination of the arguments, this Court finds that the charge sheet had indeed been replied by the petitioner. It was only the show cause notice, which was not replied by the petitioner, i.e. the second opportunity that was given to him, the first opportunity was the giving of the charge sheet on the basis of on the spot inspection. In the reply that was submitted by the petitioner to the charge sheet, he had annexed affidavits of his own relatives, who were Antyodya Card Holders and such details have been mentioned in the impugned order. Smt. Moharkali was the Paternal Aunt, Smt. Maandei was the Sister-in-law, Smt. Rajwati, Smt. Sharda and Smt. Moortidevi, were the paternal Aunt, Chandra Pal, Prem Singh, Rajendra were the Nephews, Smt. Urmila was the daughter-in-law of his first cousin, Smt. Jaggu was also the daughter-in-law of his first cousin, Smt. Pushpa Devi was his nephew's wife and Smt. Sarvesh, wife of Bhavichandra was also the wife of his nephew and the affidavits that were produced of these Antyodya Card Holders were all in the same language. After this reply was submitted, a further inquiry was held, in which the Gram Pradhan of Gram Panchayat, Ghausli Ram Sahay, Block Junawai, Tehsil Gunnaur, district Sambhal had given details of the relations of all these persons, who had given affidavits in favour of the petitioner with the petitioner and thereafter, a show cause notice was issued to the petitioner and the petitioner did not submit his reply to the second opportunity given to him to place his case. Even, the Sale Register showed that five ineligible persons, whose names were later on struck off, the list available on the Internet, were issued Scheduled Commodities by the petitioner and from the Sale Register it was also found that only thumb impressions were made of those, who received that rations from the licensee without indicating the names or numbers of such Card-holders, most of the Sale Register was completely illegible and the Licensing Authority has expressed dissatisfaction regarding the irregularities committed by the petitioner in distribution of the Scheduled Commodities as is evident from the affidavits of his own relatives and as was evident from a perusal of the Sale Register. It is on the basis of this subjective satisfaction reached after considering all objective materials that the impugned order of cancellation has been passed after prior approval from the District Magistrate of District Sambhal. 7. I do not find non application of mind as alleged by the learned counsel for the petitioner and also I do not find non grant of reasonable opportunity for placing his case before the Licensing Authority. The petitioner was initially given a charge sheet on the basis of on the spot inspection. He submitted his reply to the charge sheet, then a second opportunity i.e. show cause notice was issued to which he did not reply. 8. Learned counsel for the petitioner's allegation that he never received the show cause notice is belied from the fact that in the impugned order itself, it has been mentioned that the petitioner had received the show cause notice dated 24.08.2017 on 26.08.2017. The order has been passed almost four months after the second opportunity was given on 24.08.2017. 9. Learned counsel for the petitioner has placed reliance upon the judgments of this Court rendered by Co-ordinate Benches in Writ C No. 41886 of 2016 (Dharmendra Gupta vs State of UP and others) decided on 27.09.2016 and Mahendra Singh vs State of UP and another reported in 2016 (8) ADJ 732 and Lal Bahadur Gupt vs State of UP and others, reported in 2016 (10) ADJ 378 . 10. From a perusal of the aforecited cases, it is evident that the facts of these cases were completely different. 11. 10. From a perusal of the aforecited cases, it is evident that the facts of these cases were completely different. 11. In Dharmendra Gupta's case, an affidavit was called of the Sub Divisional Magistrate concerned and he was also summoned in person and he admitted before the Court that the impugned order was not prepared by him but was simply signed by him and was prepared by his office. Therefore, this Court issued a direction to the Chief Secretary of the State of U.P. for further issuing orders to all Officers and Authorities exercising quasi judicial powers to pass orders themselves and not to depend upon the drafting by subordinate staff as any such action results in vitiating the order. 12. In compliance of the order passed by this Court in Dharmendra Gupta, a Government Order was issued by the then Chief Secretary dated 30.12.2016, in which operative portion of the order passed by this Court was mentioned, and thereafter, it was directed that all Executive Authorities/ Officers shall consider and decide the matters in exercise of quasi judicial powers given to them by applying their mind themselves and not depend upon the drafting of their subordinate staff. 13. With regard to the case of Mahendra Singh, this Court had entertained the writ petition against the cancellation order on the ground that even though, a reply was submitted by the licensee to the Sub Divisional Officer without discussing such reply in detail, the Licence Agreement was cancelled with the simple observation that the reply submitted was not found satisfactory. It was this kind of observation that was found by this Court to be vitiated in view of the law settled by the Full Bench of this Court in Puran Singh vs State of UP and another, 2010 (3) ADJ 659 (FB) and the law setttled in Abu Baker vs State of U.P. through Secretary (F & S) Government of UP at Lucknow and others, 2010 (6) ADJ 339 and in Gyan Singh vs State of UP and others (Writ C No. 33712 of 2006) decided on 12.09.2012 and in Ashok Kumar Pandey vs State of UP and others (Writ C No. 1070 of 2010) decided on 13.12.2012. This Court had observed on the basis of judgments rendered by the Supreme Court that the Principles of Natural Justice should be followed and a proper consideration should be given to any reply submitted by the licensee while passing an order of cancellation of fair price shop licence as it results in civil consequences. 14. In Lal Bahadur Gupt (supra) this Court placed reliance upon its earlier judgment and also the judgment rendered in Whirlpool Corporation vs Registrar of Trade Marks, 1998 (8) SCC 1 , and interfered in the order of cancellation of fair price shop licence on the ground that the writ petitioner was not given any opportunity at all. A few Antyodya Card Holders had complained against irregular distribution of Scheduled Commodities and on that basis, the writ petitioner's agreement was suspended and he was given a fortnight time to file reply. It was the contention of the writ petitioner that no notice was received by him and the impugned order of cancellation had been passed on the ground that more than twenty one days had expired and the petitioner had not filed any reply, and therefore, the charges levelled against him were deemed to be proved. This Court referred to paragraph 5 of the Government Order dated 29.07.2004, which prescribed a procedure in case the licensee did not choose to reply to the charge sheet issued to him. 15. Learned counsel for the petitioner has also relied upon the judgment rendered in Writ C No. 46648 of 2017 (Aajad Kumar vs State of UP and others) decided on 23.10.2017 by Co-ordinate Bench of this Court, wherein the Court was considering the question of law 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. This Court found on the basis of facts mentioned in the writ petition that a show cause notice was issued on the basis of complaint to the writ petitioner on 31.12.2016 and before the petitioner could submit his reply, the order of cancellation of his licence was passed on 06.04.2017. This Court found on the basis of facts mentioned in the writ petition that a show cause notice was issued on the basis of complaint to the writ petitioner on 31.12.2016 and before the petitioner could submit his reply, the order of cancellation of his licence was passed on 06.04.2017. This Court considered the arguments raised by the learned counsel for the petitioner and came to a conclusion on the basis of judgments rendered by the Supreme Court and by this Court that a full-fledged inquiry should have been carried out, which was not done. 16. This Court relied upon a judgment rendered in Modula India vs Kamakshya Singh Deo, AIR 1989 SC 162 , wherein it has been held that right of the defence to cross examine the plaintiff's witnesses should not be looked upon as the defendant's strategy to delay the proceedings. 17. The case of Modula India (supra) related to non-filing of written statement in a civil suit by the defendant and it was held that even if, no written statement was filed, the defendant had a right to cross examine the plaintiff and his witnesses and the Court should thereafter looking into the evidence of the plaintiff 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 in the matter. 18. Such a judgment, which was rendered on the particular facts of the case relating to non-filing of the written statement in a civil suit and the right of the defendant to cross examine the plaintiff's witnesses could not have been relied upon out of context. 19. Hon'ble Coordinate Bench of this Court has also relied upon a judgment rendered in D.K. Yadav vs J.M.A. Industries Ltd. reported in AIR 1993 (3) SCC 259 . This judgment rendered in D.K. Yadav (Supra) related to a service matter. 20. 19. Hon'ble Coordinate Bench of this Court has also relied upon a judgment rendered in D.K. Yadav vs J.M.A. Industries Ltd. reported in AIR 1993 (3) SCC 259 . This judgment rendered in D.K. Yadav (Supra) related to a service matter. 20. This Court has already held in Writ C No. 4249 of 2013 (Sheo Bhan Singh vs State of UP) decided on 02.01.2018 on the basis of judgment rendered by the Hon'ble Supreme Court in A.S. Motors Pvt. Ltd. vs Union of India and others, 2013 (1) SCC 114 that insofar as contractual obligations are concerned, as in a licence agreement, which is contract entered into between the licensee i.e. the fair price shop dealer and the Government, the strict Principles of Natural Justice as are followed in disciplinary proceedings arising out of service jurisdiction cannot be applied. A Government servant is governed by his status and is ruled by service conditions set out in the Service Rules governing disciplinary proceedings. 21. This Court is of the considered opinion that the procedure prescribed under the Central Civil Services (Classification Control and Appeal) Rules, 1965 and the Uttar Pradesh Government Servants Discipline and Appeal Rules, 1999 cannot be applied in matters relating to contractual obligations. 22. The limited obligation upon the Executive Authorities is with respect to issuing of a charge sheet containing clear charges so that the Licensee is made aware of the allegatrion against him and grant of opportunity for such licensee to file his reply or explanation. A duty is further cast upon the Executive Authorities to thereafter as consider and examine the explanation and indicate whether there was some discrepancy in the same, and thereafter issue a show cause notice, which can be deemed to be a second opportunity to the licensee to further submit is case, and thereafter pass a reasoned and speaking order. 23. In this case, the procedure as is required under the Government Order dated 29.07.2004 was followed to the letter. The explanation of the petitioner was considered properly by the Licensing Authority. 24. Learned counsel for the petitioner has lastly argued that suspension order was not passed in this case, and therefore, cancellation order could not have been passed straightaway. 25. Such an argument has only been noted to be rejected as misconceived. The Licensing Authority is not duty bound to pass a suspension order in every case. 24. Learned counsel for the petitioner has lastly argued that suspension order was not passed in this case, and therefore, cancellation order could not have been passed straightaway. 25. Such an argument has only been noted to be rejected as misconceived. The Licensing Authority is not duty bound to pass a suspension order in every case. It is only when on preliminary inquiry it is found that the charges are of such a grave nature as to warrant cancellation of Licence Agreement that a suspension order is passed. However, the preliminary inquiry is only a preliminary inquiry and it cannot in any way fetter the discretion of the Executive Authority to be exercised after all materials are placed before him in detailed inquiry held thereafter. If in the detailed inquiry held thereafter on considering the explanation of the licensee the Licensing Authority finds that indeed grave irregularities have been committed and the licensee has not been able to explain them away by his explanation, looking into his past conduct, a cancellation order can be passed. 26. I do not find any legal or factual infirmity in the order impugned to exercise the extraordinary jurisdiction conferred on this Court under Article 226 of the Constitution of India. 27. The writ petition is dismissed. 28. No order as to costs.