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2018 DIGILAW 889 (ALL)

RAJDA v. STATE OF U. P.

2018-04-12

AJAY BHANOT

body2018
JUDGMENT Hon’ble Ajay Bhanot, J.—Heard Sri P.K. Pandey, Advocate holding brief of Sri G.C. Pant, learned counsel for the petitioner and Sri Subranshu Shekhar Singh learned Standing Counsel. 2. The petitioner was the fair price shop dealer of Village Panchayat Thanvala, Tehsil Bilari, District Moradabad. The fair price shop licence of the petitioner came to be suspended by an order dated 25.5.2012 solely on the ground that the petitioner did not deposit the requisite amount for lifting the essential commodities on 22nd of May, 2012. As per roster the petitioner was required to deposit the amount for lifting essential commodities on the 22nd of every month. The petitioner had committed an irregularity and acted in violation of Government Orders. On this single count, a show-cause notice was issued to the petitioner on 25.5.2012. 3. The petitioner submitted the reply to the show-cause notice on 26.6.2012, refuting the charges laid out against her. 4. The Sub-Divisional Magistrate, Bilari, District Moradabad terminated the licence of the petitioner by order dated 21.12.2012. The petitioner took the order in appeal before the Court of Commissioner, Moradabad Division, Moradabad. The appeal was registered as Appeal No.12/12-13 (Smt. Rajda v. State of U.P. and others). The appellate authority rejected the appeal of the petitioner by order dated 24.10.2013. 5. The petitioner has assailed the order of termination of her license dated 21.12.2012 and the order dismissing the appeal dated 24.10.2013. 6. Sri P.K. Pandey, learned counsel for the petitioner contends that the initial authority did not consider the reply tendered by the petitioner. Learned counsel also submitted that the same grounds were urged in the memo of appeal before the appellate authority. The appellate authority failed to redeem the miscarriage of justice by not adverting to the grounds raised in the memo of appeal. The punishment is disproportionate to the charge, the petitioner is accused of. The previous track record of the petitioner was impeccable. 7. Learned counsel for the petitioner placed reliance on the judgments of this Court rendered in the case of Ram Nath v. State of U.P. and others, 2010(9) ADJ 398 and in the case of Madhu Singh and others v. State of U.P. and others, (Writ - C No.39074 of 2006) rendered on 28.11.2017. 8. Per contra learned Standing Counsel contended that the petitioner had violated the roster of payment, hence her licence was validly terminated. 9. 8. Per contra learned Standing Counsel contended that the petitioner had violated the roster of payment, hence her licence was validly terminated. 9. Having heard the counsels for the parties and upon perusal of the record the following facts, which are relevant, are established beyond doubt and beyond pale of dispute. 10. The only charge laid out against the petitioner in the show-cause notice was that she breached the roster by not depositing the amount for lifting the essential commodities on 22nd of May, 2012. The petitioner had submitted a reply to the show-cause notice. The reply disclosed that the reasons for failure to deposit the said amount on the appointed date. The petitioner in her reply asserted that amount for the essential commodities could not be deposited on the 22nd of May, 2012 as serious illness confined her to bed. The petitioner was under medical observation and advice of Dr. Anil Kumar. The doctor had also advised the petitioner to take complete bed rest and avoid exertion. The petitioner also drew attention of the authorities to her unblemished track record in the past and also to the fact that she had not been accused of any malpractice in distribution of the commodities to the card holders or the beneficiaries. The satisfaction of the cardholders at the management of the fair price shop and distribution of essential commodities by the petitioner was duly asserted. The order of termination clearly reflects that the reply submitted by the petitioner was not accorded any consideration. On the contrary a finding is returned that the petitioner had not submitted a reply. 11. The petitioner took the order of termination in appeal before the learned Commissioner, Moradabad Division, Moradabad. In the memo of appeal it was categorically stated that the reply to the show-cause notice was submitted before the lower Court alongwith the supporting documents. Besides the contents of the reply were reiterated in the grounds of appeal. 12. The appellate authority while rejecting the appeal of the petitioner by order dated 21.12.2012, failed to advert to the aforesaid grounds and did not return any finding on the merit of the reply to the show-cause notice. In fact the appellate order is silent on the issue much like the order passed by the authority terminating the licence. 13. 12. The appellate authority while rejecting the appeal of the petitioner by order dated 21.12.2012, failed to advert to the aforesaid grounds and did not return any finding on the merit of the reply to the show-cause notice. In fact the appellate order is silent on the issue much like the order passed by the authority terminating the licence. 13. The consequence of failure of an authority to accord attention to the grounds raised in the memo of appeal, was in issue before this Court in the case of Madhu Singh (supra). This Court held thus : “Failure of the appellate authority to consider and return findings on the objections to the report dated 9.2.2005, is a failure to discharge the office of the appellate authority. Such action of an appellate authority would render the statutory right of appeal illusory. The appellate authority is under an obligation of law to address all germane issues raised before it. In case the appellate authority does not discharge this obligation, the judgment handed down will be vitiated and rendered unsustainable in law.” 14. The law laid down in Madhu Singh (supra) squarely applies to the facts of this case. The judgment in the case of Madhu Singh (supra) was entered in respect of an appellate authority. However, the initial authority issuing the show-cause notice is under a like obligation to consider the reply to the show-cause notice tendered by the noticee. 15. The failure of both the authorities below to consider the reply of the petitioner reflects non-application of mind. This failure in itself is sufficient to vitiate the proceedings and renders both the orders impugned illegal. 16. Before proceeding further, there is one critical aspect which would now merit attention. The petitioner had specifically asserted in her appeal before the appellate authority that she had tendered her reply to the show-cause notice before the licensing authority. The supporting documents were also brought by the petitioner in the record of the appeal. The respondents were aware of the case of the petitioner. However, the aforesaid assertions and documents were not traversed or contested by the respondents before the appellate authority. 17. The respondents cannot be permitted to raise any contrary plea on facts, at this stage. 18. Accordingly, I hold that the petitioner had submitted her reply to the show-cause notice before the respondent No. 2, in the first instance. 19. However, the aforesaid assertions and documents were not traversed or contested by the respondents before the appellate authority. 17. The respondents cannot be permitted to raise any contrary plea on facts, at this stage. 18. Accordingly, I hold that the petitioner had submitted her reply to the show-cause notice before the respondent No. 2, in the first instance. 19. The issue relating to a fortuitous absence of a fair price shop dealer on account of illness came up for consideration before this Court in the case of Ram Nath v. State of U.P. and others (supra). The relevant extracts of the judgment are reproduced hereunder : “14. In fact this is a case where no opportunity of hearing was given to the petitioner. Further we find that the impugned order has been passed in hot haste manner without application of mind and without looking into the relevant conditions of the agreement as we have noticed that there is no such condition in the agreement for which the petitioner’s agreement to run fair price shop has been cancelled. In this case, it is apparent on the face of record that after applying for leave the petitioner left for treatment of his wife and there is nothing on record to indicate whether the leave was sanctioned to the petitioner. Moreover it is on record that after filing the application by the petitioner his agreement to run fair price shop was suspended and his shop was permanently attached with the shop of respondent No. 3. In these circumstances, we find that there was sufficient reason to believe that no further application for leave was necessary as the shop was permanently attached with the shop of respondent No. 3. The alleged show-cause notice issued by Supply Inspector contains that there is a hindrance in distribution of scheduled commodities to the public and on this pretext the petitioner’s reply was required within three days. We do not find any material available on record from which it can be inferred that there was any hindrance in distribution of scheduled commodities to the public, as the petitioner’s fair price shop was attached with the shop of respondent No. 3 and there is no indication on record that there had been any complaint with regard to distribution of scheduled commodities and in case there was any hindrance, for that petitioner cannot be blamed. 15. 15. Otherwise also the only reason for cancellation of agreement appears to be petitioner’s absence which has now been explained by the petitioner in the writ petition, i.e. the illness of petitioner’s wife. Now it has to be seen that for such reason, the agreement to run fair price shop could be cancelled particularly in the circumstances where there had been no complaint against the petitioner’s work as fair price shop agent with effect from 1993. During this long period of about 16 years on two occasions the petitioner has been absent, on first occasion on account of his illness and on second occasion on account of illness of his wife. 16. The condition No. 12 (3) of the conditions of agreement provides that leave etc. in exceptional circumstances be granted to the fair price shop agent according to the government rules. It is not a case where there is no provision of grant of leave. From the perusal of record it transpires that after receipt of application of the petitioner for granting the leave, the district supply officer has suspended the petitioner’s agreement and attached the shop of the petitioner with the respondent No. 3 permanently meaning thereby the suspension had to continue till the petitioner’s resuming duty as fair price shop agent. Hence, there was no scope for the respondents to initiate any proceeding for cancellation of agreement on the ground of absence. 17. Otherwise also we are of the view that performance of duty either by government servants or persons functioning under the statutory contract is utmost concern of an employee or person who is working under the contract but simultaneously they also owe certain duties to manage their family affairs as the performance of public duties as well as to look after the family affairs are inter-woven both have closed nexus with each other and in absence of any one of it the functioning of social life is not possible. The person working under the terms of the contract is required to complete the contract in terms of the agreement, simultaneously he is also duty bound to perform his duty towards his family affairs. No doubt, the importances has to be given to the performance of public duty but simultaneously under such circumstances as in the case of the petitioner, the performance of duty towards wife cannot be ignored. No doubt, the importances has to be given to the performance of public duty but simultaneously under such circumstances as in the case of the petitioner, the performance of duty towards wife cannot be ignored. Here in this case, the petitioner’s wife has been ailing and the petitioner after giving an application seeking leave has proceeded for treatment of his wife and after her cure when he came back, he filed an application for resuming his duty of fair price shop agent. This kind of absence cannot be treated as deliberate absence. We are of the view that for such kind of absence, such action are not warranted particularly in the circumstances where there is no inconvenience to the public in getting the scheduled commodities for which fair price shop agents are appointed. The Apex Court in the case of Malkiat Singh v. State of Panjab and others, JT 1996 2 SC 684 while dealing with the dismissal order of a constable for absence on duty for about nine months held as under........... 18. It is true that discipline is required to be maintained. However, absence may sometimes be inevitable. In the facts and circumstances of this case, an opportunity may be given to the appellant to work efficiently to prove his excellence.” 20. The past track record of the petitioner as a fair price shop dealer is unblemished. The petitioner was not charged with malpractice in the distribution of the essential commodities or any grave act of misconduct. The card holders and beneficiaries of the poverty alleviation schemes made no complaint against the petitioner. The charge laid out against the petitioner was only a one time default. The assertion that the cardholders were satisfied with the distribution of essential commodities and the management of the fair price shop by the petitioner, has not been refuted. Moreover, there is nothing in the record to show that the supply of food grains or essential commodities was disrupted on account of the onetime default or the cardholders were denied rations for the same reason. These facts are undisputed. 21. In view of the established facts of the case and the law laid down in the case of Ram Nath (supra), no exception can be taken to the one time failure of the petitioner to deposit the amount on the date appointed by the roster. These facts are undisputed. 21. In view of the established facts of the case and the law laid down in the case of Ram Nath (supra), no exception can be taken to the one time failure of the petitioner to deposit the amount on the date appointed by the roster. Since the default was a solitary one, occasioned by the medical condition of the petitioner, her conduct cannot be faulted with. 22. The impugned order of termination dated 21.12.2012 as well as the order of rejection of appeal dated 24.10.2013, are in the teeth of the law laid down by this Court in the case Madhu Singh (supra) and the case of Ram Nath (supra). The impugned orders are unsustainable in law. 23. In the Council of Civil Service Unions v. Minister for the Civil Service, (1984)3 All ER 935, the doctrine of ‘proportionality’ was introduced by Lord Diplock as a ground of judicial review in England. The doctrine of proportionality calls for measuring action to the existing need. It rationalizes decision making by retaining proportionality and logic as defining elements of lawful administrative action. The doctrine of proportionality serves as a guiding light for sane and balanced action by decision makers and provides a safeguard against loss of proportion and balance in administrative action. The doctrine of proportionality is an integral part of judicial review in India. 24. The Hon’ble Supreme Court in the case of Ranjit Thakur v. Union of India and others, (1987) 4 SCC 611 , made an eloquent exposition of the law on the point. The Hon’ble Supreme Court held thus : “25. Judicial review generally speaking, is not directed against a decision, but is directed against the “decision making process”. The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service, (1984) 3 WLR 1174 (HL) : (1984 3 All ER 935, 950, Lord Deplock said: Judicial Review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground l would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow members of the European Economic Community; . . . 26. In Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 this Court held: [SCC p. 453, SCC (L&S) p. 353, para 15] “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. The point to note, and emphasise is that all powers have legal limits. 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” 25. The punishment of termination of license of the petitioner is highly disproportionate to the solitary charge laid out in the show-cause notice and the attending facts and circumstances of the case. The impugned orders are in “outrageous defiance of logic”. The impugned orders are vulnerable on this count too, and are liable to be set aside. 26. The entire material is available before this Court. The findings on relevant issues have been entered in the preceding paragraphs. It is time for a litigation terminus. The impugned orders are in “outrageous defiance of logic”. The impugned orders are vulnerable on this count too, and are liable to be set aside. 26. The entire material is available before this Court. The findings on relevant issues have been entered in the preceding paragraphs. It is time for a litigation terminus. In these facts remanding the matter to the authorities for fresh consideration would not subserve the ends of justice. It would only protract litigation. Even more importantly it would be an exercise in futility. The Hon’ble Supreme Court set its face against remand of matter, if it would be an empty formality. 27. In P. Purushottam Reddy and another v. Pratap Steels Ltd., (2002) 2 SCC 686 , the Hon’ble Supreme Court, cautioned thus : “10. .............. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided.” While in the case of Ashwanikumar K. Patel v. Upendra J. Patel and others, (1999) 3 SCC 161 , the Hon’ble Supreme Court held thus : “8. In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available. In matters involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” 28. In the view of the facts of the case and in the light of the law laid down by the Hon’ble Supreme Court, the matter is not being remitted to the authorities and the controversy is brought to its final rest. 29. We are, therefore, of the view that the remand by the High Court was not necessary.” 28. In the view of the facts of the case and in the light of the law laid down by the Hon’ble Supreme Court, the matter is not being remitted to the authorities and the controversy is brought to its final rest. 29. For the aforesaid reasons, the order impugned dated 24.10.2013 passed by the learned Commissioner, Moradabad Division, Moradabad in appeal No. 12 of 2012 - 13 and the order impugned 21.12.2012 passed by the Sub-Divisional Magistrate, Bilari, District Moradabad are hereby quashed. 30. The respondents are directed to restore the fair price shop licence of the petitioner and reinstate the petitioner as the fair price shop dealer of Village Panchayat Thanvala, Tehsil Bilari, District Moradabad forthwith. The writ petition is allowed.