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2019 DIGILAW 1181 (ALL)

Mukesh Kumar v. State of U. P.

2019-05-03

PRAKASH PADIA

body2019
JUDGMENT : PRAKASH PADIA, J. 1. Heard Sri S. M. Iqbal Hasan, learned counsel for the petitioner and learned Standing Counsel for the respondents. 2. The petitioner has preferred the present writ petition challenging the order dated 20.2.2014 passed by the respondent no.2/Commissioner, Moradabad Division, Moradabad as well as order dated 4.4.2013 passed by the respondent no.3/Sub Divisional Officer, Kanth, Moradabad with further prayer to issue a mandamus commanding the respondents to restore the license of the shop of the petitioner as well as restore the supply of essential commodities to the shop of the petitioner forthwith. 3. The facts in brief as contained in the writ petition are that the petitioner is a fair price shop licensee of Village-Dariyapur, Block Thakurdwara Kath, District Moradabad. In this regard an agreement was executed between the parties and on the basis of the same petitioner was running the aforesaid fair price shop. The provisions of U.P. Scheduled Commodities Distribution Order-2004 was applied in order to run the aforesaid fair price shop. 4. An order dated 4.2.2013 was passed against the petitioner by which his license for fair price shop was suspended. 5. The petitioner submitted a reply dated 23.3.2013. Thereafter an order was passed by the respondent no.3 on 4.4.2013 cancelling the license of the petitioner to run the fair price shop. Against the aforesaid order an appeal was preferred by the petitioner before the respondent no.2/Commissioner Moradabad Division, Moradabad. The said appeal was rejected vide order dated 20.2.2014 and as such challenging the aforesaid order, the petitioner has preferred the present writ petition. 6. From perusal of the records it reveals that the complaint was made against the petitioner. Various complaints were made against the petitioner that the petitioner has not given essential commodities to the card-holders not on the correct measurement. In response to the same the petitioner also submitted various affidavits of the same card holders stating therein that no irregularity was committed by the petitioner in distribution of essential commodities. It is contended that without considering the aforesaid aspects of the matter, the license of the fair price shop of the petitioner was cancelled by the respondent no.3. 7. In response to the same the petitioner also submitted various affidavits of the same card holders stating therein that no irregularity was committed by the petitioner in distribution of essential commodities. It is contended that without considering the aforesaid aspects of the matter, the license of the fair price shop of the petitioner was cancelled by the respondent no.3. 7. It is further contended that although various grounds were taken in the memo of appeal before the appellate authority but without dealing with the same and only after noting down the averments made in the order passed by the Sub Divisional Officer, appellate authority rejected the appeal preferred by the petitioner. Both the orders passed by the respondents no.2 and 3 are patently illegal because no cogent reason whatsoever has been given by the aforesaid authorities while passing the aforesaid orders. He further contended that the orders impugned were passed in violation of the procedural law, violation of principles of natural justice and against the principles of equity and fair play, as such they are liable to be set aside. 8. It is contended that during the course of enquiry and till passing of order of suspension of license of fair price shop at no point of time petitioner was directed to attend the alleged enquiry nor any opportunity was provided to the petitioner and the complainant/card holders. 9. In so far as the appellate order is concerned, it is argued by the learned counsel for the petitioner that the same is also illegal in view of the fact that the same was passed without any application of mind. In this regard learned counsel for the petitioner relied upon the following judgments namely :- (I) M/s Mahaveer Prasad Santosh Kumar Vs. State of U.P. and others reported in AIR 1970 SC 1302 . (II) Bahadur Vs. State of U.P. and others reported in 2013(9) ADJ 446 . (III) Union of India & Ors. Vs. Jai Prakash Singh & anr. reported in 2007 AIR SCW 1692. 10. Apart from the same, learned counsel for the petitioner also relied upon following judgments namely :- (I) Dhanajaya Reddy Vs. State of Karnataka reported in 2001(4) SCC 9 . (II) Mahatma Gandhi Upbhokta Sahkari Samiti Vs. State of Uttar Pradesh reported in 2001 (43) AllLR 773 . (III) Kaleem Ullah Khan Vs. State of U.P. and others reported in 2015 (1) ADJ 142 . State of Karnataka reported in 2001(4) SCC 9 . (II) Mahatma Gandhi Upbhokta Sahkari Samiti Vs. State of Uttar Pradesh reported in 2001 (43) AllLR 773 . (III) Kaleem Ullah Khan Vs. State of U.P. and others reported in 2015 (1) ADJ 142 . (IV) Laloo Singh Vs. State of U.P. through its Commissioner Devi Patan Gonda reported in 2015 (5) ADJ 631 . (V) Puran Singh Vs. State of U.P. and Others reported in 2010 (3) ADJ 659 (FB). (VI) Smt. Santara Devi Vs. State of U.P. through Secy. and others passed in Writ C No.56664 of 2012. 11. A counter affidavit was filed by the learned Standing Counsel in response to the contents made in the writ petition. It is contended by the learned Standing Counsel that several complaints were made against the petitioner and after enquiry the petitioner was found guilty of committing violation and breach of conditions of agreement and as such the order impugned was passed by the respondent no.3. It is further contended that the appellate authority namely the Commissioner, Moradabad Division, Moradabad, while rejecting the appeal of the petitioner given cogent reason for dismissing the same. The 20 card holders submitted a complaint against the petitioner before the respondent no.3 stating that the petitioner has not distributed essential commodities to the beneficiaries of B.P.L. Antodaya and additional BPL Card holders since 1.1.2013 till 30.1.2013. After the complaint was made the Supply Inspector was appointed to enquire the matter, who went on the spot on 3.2.2013 at 11.00 A.M. and made an open enquiry at the primary school of the village. The statement of the several card-holders were recorded on the spot which reveal several irregularities in distribution of essential commodities being committed by the petitioner. The Enquiry Officer submitted its report dated 4.2.2013 to the respondent no.3 and thereafter the order of suspension was passed by him against the petitioner. 12. In response to the aforesaid it is contended by the learned counsel for the petitioner in rejoinder affidavit that the respondents authorities neither called the petitioner during enquiry nor he was provided copy of the enquiry report, therefore, the rights of the petitioner has been seriously prejudiced specially in view of the fact that he was not provided opportunity to cross examine the card holders. It is further contended that all the sale register and stock register have been verified in three steps and the same was deposited before the supply department only then the next month commodities is being issued to the shop keeper. In the facts and circumstances, it is contended that the decision taken by the respondents are liable to be set aside. 13. Heard learned counsel for the parties and perused the record. 14. From perusal of the record it reveals that although before the order of suspension was passed against the petitioner an enquiry was conducted but at no point of time the copy of the enquiry report was provided to the petitioner and further the petitioner was never given any opportunity to cross examine the complainants. In the reply submitted by the petitioner a large number of evidences were produced by him but while passing the order of cancellation of license, the same were not taken into consideration in a correct manner. The procedure prescribed for imposing the punishment was not followed by the respondent no.3 while cancelling his agreement to run the fair price shop. Apart from the same the order passed by the respondent no.3 is a non speaking order. In so far as the order passed by the Commissioner, Moradabad Division, Moradabad, is concerned, the said order is absolutely non speaking order. Although in the memo of appeal various grounds were taken by the petitioner but without considering the grounds contained in the memo of appeal, only on the basis of order passed by the respondent no.3, Sub Divisional Officer, the order was passed by the appellate authority and as such the order was passed in complete non application of mind. The procedures for enquiry, suspension and cancellation of the agreement has been provided in the various Government orders namely the Government Orders dated 29.7.2004 and 23.4.2003. Although a complete procedure has been prescribed in the aforesaid Government orders but non of the them was followed by the respondents while passing the orders against the petitioner. Apart from the same procedure has been prescribed under the U.P. Scheduled Commodities Distribution Order, 2004 but the same was also not complied with by the respondents before passing the order impugned. The Clause 28 of the U.P. Scheduled Commodities Distribution Order, 2004 dealt with the provisions for filing of appeal. Apart from the same procedure has been prescribed under the U.P. Scheduled Commodities Distribution Order, 2004 but the same was also not complied with by the respondents before passing the order impugned. The Clause 28 of the U.P. Scheduled Commodities Distribution Order, 2004 dealt with the provisions for filing of appeal. It is contended under sub Clause 4 of Clause 28 of the U.P. Scheduled Commodities Distribution Order 2004 that no appeal shall be disposed of unless the aggrieved person has been given a reasonable opportunity of being heard. In the present case, it is clear that no reasonable opportunity was provided to the petitioner by the appellate authority before passing the order impugned. 15. In the case of Dhanajaya Reddy(supra), it was held by the Supreme Court that where law requires a thing to be done in a certain manner, it might be done in that manner only. The power must be exercised in the manner provided in the statutes. 16. In the case of Mahatma Gandhi Upbhokta Sahkari Samiti (supra) the Division Bench of this Court was pleased to held that the petitioner was not supplied with the copy of the enquiry report conducted by the Sub Divisional Magistrate upon which reliance was placed in the order impugned. In this view of the matter the, Division Bench of this Court has held in the aforesaid case that since the order was passed without providing the copy of the enquiry report, the same is liable to be set aside only on the ground that the same was passed in violation of principles of natural justice. 17. In the case of M/s Mahaveer Prasad Santosh Kumar (supra) it was held that a party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may deter-mine whether the facts were properly ascertained or not. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may deter-mine whether the facts were properly ascertained or not. The relevant paragraph of the aforesaid judgment is quoted hereinbelow:- “Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him : it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be, supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasijudicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.” 18. In the case of Bahadur Vs. State of U.P. (supra) it was held that : “5. In the case of Bahadur Vs. State of U.P. (supra) it was held that : “5. The Court finds, that not only the findings given by the Writ Court in its earlier order were not adhered to, the District Supply Officer has committed the same mistake by making a fresh inquiry and without issuing a show cause notice to the petitioner and without asking for his explanation has unilaterally passed the order in gross violation of the principles of natural justice as embodied in Article 14 of the Constitution of India. Such orders, prima facie indicates non-application of mind and a deliberate attempt to disobey the orders of the Writ Court. 6. Without commenting any further on the conduct of the officer concerned, the Court finds that the impugned orders passed by the Prescribed Authority is violative of the principles of natural justice, inasmuch as, the inquiry report were never supplied to the petitioner nor any opportunity was given to the petitioner to defend himself. If the inquiry report is made the basis of the cancellation of the licence, the authority was required to supply a copy of the report and issue a show cause notice. 7. In the light of the aforesaid, the impugned order of the prescribed authority as well as the consequential order of the appellate authority are quashed.” 19. In the case of Kaleem Ullah Khan (supra) it was held that :- 8. It is settled principle that if any material is sought to be used in an enquiry, the copies of material must be supplied to the party against whom such an enquiry is held. The Disciplinary Authority as well as Appellate Authority did not consider this aspect of the matter and expressed their concurrence to the finding of the Inquiry Officer, without applying their independent and free mind. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Enquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. 10. The Appellate Authority while considering the appeal of the petitioner failed to appreciate the fact that the Enquiry Officer at the back of the petitioner had proved charges without affording reasonable opportunity to controvert the same. Therefore, the order of Appellate Authority is bad in law and cannot be sustained. 10. On the facts of the present case, the petitioner ought to have been permitted to participate in the aforesaid inquiry and the statements of the complainants should not have been recorded in the presence of the petitioner, and without furnishing the statement of the complainants to him and without giving him an opportunity to cross-examine the complainants, who had deposed against the petitioner, and thus any such action based on any such report or evidence could not become a foundation for passing an order of cancellation of fair price licence of the petitioner as cancellation has civil consequences. 13. The decision in Smt. Alka Rani's case applies to the facts of the case in hand, as in this case also allegations are vague and specific instances and material sought to be read in support of the allegations against the petitioner have not been mentioned. If no material is mentioned in the suspension order then substituting the material in the counter-affidavit would be of no help to the respondents. We further find that along with the suspension order no show-cause notice had been issued to the petitioner directing him to show-cause as to whey his fair price shop licences/agreement may not be cancelled. The impugned suspension order is vitiated on this ground alone being in violation of mandatory requirements of G.O. Dated 29.7.2004. 20. In the case of Laloo Singh (supra) it was held that :- 7. 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. These rules are intended to prevent such authority from doing injustice. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry. Inquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than decision in a quasi-judicial enquiry. [emphasis supplied] 8. 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 statue 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 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. 21. In the case of Puran Singh (supra) it was held that :- 8. When the matter was first heard, precise ground so taken and argued is that fair price shop agreement/license of the petitioner could not have been suspended without giving any opportunity to him. As no opportunity was given it being in violation of principles of natural justice is liable to be set aside on this ground alone. A further submission was made that the Government Order dated 29.7.2004 (annexure no. 1 to the writ petition) provides the procedure of suspension/cancellation and thus that having not been taken care, the impugned order of suspension is to be set aside. 9. In support of the submission that for lack of opportunity the impugned exercise is to be quashed, decision given by the Bench of this Court in the case of Pramod Kumar Vs. State of U.P. and others reported in 2006 (10) ADJ 610 and Harpal Vs. State of U.P. and another reported in 2008 (6) ADJ 452. 22. 9. In support of the submission that for lack of opportunity the impugned exercise is to be quashed, decision given by the Bench of this Court in the case of Pramod Kumar Vs. State of U.P. and others reported in 2006 (10) ADJ 610 and Harpal Vs. State of U.P. and another reported in 2008 (6) ADJ 452. 22. After taking into consideration the judgment of the Full Bench of this Court, this Court in the case of Smt. Santara Devi (supra) was pleased to held that fulfledged enquiry is necessary before cancelling the agreement and it would require service of the charges, along with material in support of each charge, the information about the place and date of enquiry, the statements of person on whom complaint enquiry was started or in a case of suo-motu inquiry, the statements of the persons appearing before the Enquiry Officer. It is further held in the aforesaid case that it is obligatory upon the authorities to hold a fulfledged enquiry against the fair price shop dealer, after serving of the charge sheet with regard to the date and place where the hearing will took place and to give an opportunity of hearing. This is in addition to the show cause notice issued for the purposes of suspension of the license of the fair price shop. This procedure does not appear to have been followed by the respondents in passing the impugned order. It does not appear from the record that any fulfledged enquiry was held as contemplated by the Full Bench decision on the basis of paragraphs 4 and 5 of the Government Order dated 29.07.2004. The petitioner was not even given any charge-sheet on the basis of any such inquiry report to enable him to submit his explanation or response. The petitioner was also not given information of any date of hearing in the matter. 23. It was further held in that case that the supply of the copy of the inquiry report if any is a sine qua non in furtherance of the principles of natural justice in cases where such an inquiry report forms the basis of the impugned order. Thus, the non supply of the same also vitiates the order. 24. In the case of Union of India & Ors. (supra) it was held that : 6. Thus, the non supply of the same also vitiates the order. 24. In the case of Union of India & Ors. (supra) it was held that : 6. As rightly submitted by learned counsel for the appellants, without indicating any reason, the High Court has described the policy to be arbitrary. Interestingly, the writ petitioner had not challenged the legality of the policy. In fact, he was claiming benefit under the policy. Unfortunately, the High Court travelled beyond the pleadings. It did not grant any opportunity to the present appellant to file even counter affidavit and by a non-reasoned order struck down the policy. The order of the High Court has been stayed by this Court on 1.9.1999. 7. Reasons introduce clarity in an order. On plainest consideration of justice , the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court's judgment not sustainable. 8. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union, [1971] 1 All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree, (1974) LCR 120 it was observed: "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can , by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. the "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. 9. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. the "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. 9. The inevitable conclusion is that the impugned order of the High Court is unsustainable and is set aside. The appeal is allowed. No costs. 25. From perusal of the facts as narrated above, it is clear that the order of cancellation was passed against the petitioner without following the procedure prescribed under the Government Orders dated 29.7.2004 and 23.4.2003 as well as U.P. Scheduled Commodities Distribution Order-2004 a complete procedure has been prescribed in the aforesaid Government Orders and the Control Order of 2004 but the same has not been complied with by the respondents while cancelling the license of fair price shop of the petitioner. The copy of the enquiry report was not provided to the petitioner at any point of time nor any opportunity to participate in the enquiry proceedings was provided. 26. From perusal of the same, it is clear that impugned orders were passed in complete violation of principles of natural justice. The order cancelling the license of the petitioner by the respondent no.3 on 4.4.2013 as well as order passed by the appellate authority dated 20.2.2014 were passed without giving any cogent reasons and only after noting down the submissions made by the parties. In view of the same, the order dated 20.2.2014 passed by the respondent no.2/Commissioner, Moradabad Division, Moradabad as well as order dated 4.4.2013 passed by the respondent no.3/Sub Divisional Officer, Kanth, Moradabad are liable to be set aside and the same are hereby set aside. The respondent no.3/Sub Divisional Officer, Kanth, Moradabad is directed to pass appropriate fresh order in accordance with law and also in the light of the observations made hereinabove expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order. 27. The writ petition is allowed.