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2019 DIGILAW 314 (ALL)

Gulam Rasool v. State of U. P.

2019-02-06

MAHESH CHANDRA TRIPATHI

body2019
JUDGMENT : MAHESH CHANDRA TRIPATHI, J. 1. Heard Shri K.S. Kushwaha, Advocate assisted by Shri Santosh Kumar Singh Paliwal, learned counsel for the petitioner and Shri Dalveer Singh, learned Standing Counsel for the State respondents. 2. The petitioner, who is a licensee of fair price shop, has preferred the instant writ petition for issuing direction to the second respondent, Director General of Police, Khadya Prakostha, U.P. Lucknow to take action on his representation dated 10.2.2018 and to restrain the respondent nos.5 and 6 from conducting the alleged enquiry. By an amendment application, which was allowed on 5.7.2018, the petitioner has also assailed the validity of the order dated 20.4.2018 passed by the Sub Divisional Magistrate, Mohammadabad Gohna, District Mau, whereby the fair price shop licence of the petitioner has been placed under suspension. 3. It appears from the record that the petitioner was accorded fair price shop license of Gaon Sabha Sarya, Tehsil Mohamdabad Gohna, District Mau after following all due process and he was running the fair price shop in question without any complaint. On the complaint of the eighth respondent, the fair price shop of the petitioner was suspended on 30.12.2016. Thereafter, an enquiry was conducted by a Three-Member Committee and by the order dated 23.3.2017 the Enquiry Committee exonerated to the petitioner from all the charges and recommended for restoring the fair price shop licence of the petitioner. In pursuance of the aforesaid order, the Sub Divisional Magistrate restored the fair price shop licence on 24.3.2016. Thereafter the seventh respondent namely Man Bahadur Singh, Ex-Mandal Adhyaksh of Bhartiya Janta Yuva Morcha, Mohamdabad Gohna, Mau moved a complaint on his letter pad on 3.4.2017 before the Chief Minister for further enquiry. Again the fair price shop licence was suspended on 20.5.2017 and after the enquiry the same was restored by the Sub Divisional Magistrate on 12.9.2017. 4. Initially, the matter was taken up on 20.2.2018 and on the said date, the Court asked learned Sanding Counsel to seek instruction as to why the case of the petitioner, who is the petty fair price shop licensee, cannot be considered by the Licensing Authority i.e. District Supply Officer, District Mau and why the Police Inspector from Khadya Prakostha, Faizabad Region, Faizabad is being directed to conduct the enquiry against the petitioner. Thereafter, the matter was taken up on 7.3.2018 and the Court had again shown displeasure on the instruction so submitted by learned Standing Counsel. Again the matter was taken up on 21.3.2018 and the Court had proceeded to pass a detailed order to the following effect:- "In compliance of the order passed by this Court, earlier Shri Girish Kumar Shukla, District Supply Officer, Mau is present in the Court. He informed this Court that he was on earned leave w.e.f. 5.3.2018 to 9.3.2018 and, therefore, at the time when instructions were sent on 6.3.2018 by the Officer Incharge, Shri Girish Kumar Shukla was not present in the office. In so far as instruction which was sought from the learned Standing Counsel are concerned regarding matters which are referred to the Food Cell and matters which can be looked into by the District Supply Officer in urban area and by Sub Divisional Officer in rural areas, he submits that there are two Government Orders with regard to Licencing Authorities in rural and urban areas giving the power to such officers to hold enquiry in complaints regarding distribution of scheduled commodities by the licensee. However, with regard to the Food Cell, a government order had been issued on 22.2.1974 and on the basis of which, the Food Commissioner has issued a office memorandum on 7.1.1975 delineating the power and responsibility of Food Cell constituted at the Head Quarters. By the Government Order dated 3.6.1981, the Food Cell has also been given the power to constitute the flying squads in Kaval towns and by Government Order dated 10.5.2001, joint inspection team can also be constituted by the Food Cell. In relation to the petitioner, a complaint was received regarding irregularities in distribution of scheduled commodities by the Commissioner in collusion with high officers belonging to the Food and Civil Supply Department of the district. Therefore, the Food Cell was entrusted with the responsibility on 9.5.2017 for holding the inquiry. The Commissioner Food by his letter dated 5.6.2017 had requested the Additional Director General of Police (Food Cell) to get an enquiry conducted and submit a report. Till date, no report has been submitted and a reminder has been issued on 15.3.2018 to the Director General of Police (Food Cell) to inform the government regarding current status of the inquiry being undertaken. Till date, no report has been submitted and a reminder has been issued on 15.3.2018 to the Director General of Police (Food Cell) to inform the government regarding current status of the inquiry being undertaken. The written instructions sent from the office of District Supply Officer, Mau dated 19.3.2018 are kept on record. The District Supply Officer, Mau is exempted from further appearance in the matter. It has been submitted by the learned counsel for the petitioner in this writ petition that despite institution of the inquiry and entrustment of the same to the Food Cell since long the inquiry has not yet been completed. The petitioner has moved repeated applications for conclusion of the inquiry as the petitioner is suffering for no fault on his part. Twice the petitioner's fair price shop has been suspended and lateron suspension has been revoked. Also, because of the political interference, thrice the investigating officer had been changed. This has resulted in continued inquiry without any basis. Since, it has come on record that the Food Commissioner has written to the Director General of Police (Food Cell) for disclosure of current status of inquiry only on 15.3.2018, let, learned Standing Counsel seek instruction from respondent No.2 with regard to the current status of the inquiry and reasons for its continuance for so long and change of investigating officer thrice during this period. List this matter again for hearing on 12.4.2018" 5. Thereafter, the matter was taken up on 12.4.2018 and on the said date, learned Standing Counsel, on the basis of instructions received, contended that the enquiry against the petitioner was concluded on 15.3.2018 and the said enquiry report was forwarded by the Superintendent of Police (Food Cell) to the State Government on 19.3.2018. The State Government had also forwarded the enquiry report to the district authorities for further action. Thereafter the fair price shop licence of the petitioner was suspended on 20.4.2018 and the same has been challenged by the petitioner by means of the amendment application. 6. In this backdrop, Shri K.S. Kushwaha, learned counsel for the petitioner has vehemently contended that initially Jyaullah, son of Navidad and Shri Motilal, resident of Gram Panchayat Galibpur had made certain complaint before the Sub Divisional Officer, Muhammadabad Gohna, Mau on 29.11.2016 and the cognizance was taken on the said complaint on 30.12.2016. 6. In this backdrop, Shri K.S. Kushwaha, learned counsel for the petitioner has vehemently contended that initially Jyaullah, son of Navidad and Shri Motilal, resident of Gram Panchayat Galibpur had made certain complaint before the Sub Divisional Officer, Muhammadabad Gohna, Mau on 29.11.2016 and the cognizance was taken on the said complaint on 30.12.2016. The enquiry was conducted in the matter and finally by an order dated 23.3.2017 the licence of the petitioner has been restored. It has also been submitted that again the alleged complaint was made by the same persons on 23.3.2017 and on the basis of the enquiry the licence of the petitioner was restored on 24.3.2016. Thereafter, the seventh respondent namely Man Bahadur Singh claiming to be Ex-Mandal Adhyaksh of Bhartiya Janta Yuva Morcha, Mohamdabad Gohna, Mau made a complaint on 3.4.2017. The cognizance was taken on the said complaint on 6.4.2017 and the Principal Secretary (Food and Civil Supplies) was directed to take immediate action on the said complaint. For the same period, twice enquiry was conducted and the charges, which were levelled against the petitioner, were found to be incorrect and the licence has been restored. At no point of time the cancellation order has been passed. Again on the basis of the alleged complaint dated 3.4.2017 made by the seventh respondent, the cognizance has been taken at the higher level. Finally the fair price shop licence of the petitioner has been suspended on 20.4.2018. The said order has been challenged by the amendment application. Thereafter, the Court had taken cognizance in the matter and passed an interim order on 5.7.2018 directing the parties to maintain status quo. On account of aforesaid interim order, the fair price shop of the petitioner has not been cancelled and the matter is pending consideration. The said order has been challenged by the amendment application. Thereafter, the Court had taken cognizance in the matter and passed an interim order on 5.7.2018 directing the parties to maintain status quo. On account of aforesaid interim order, the fair price shop of the petitioner has not been cancelled and the matter is pending consideration. The entire action so taken on the alleged enquiry is based on the unfounded allegations, which were levelled with political intention and the same is in the teeth of dictum of Full Bench judgment of this Court in Puran Singh vs. State of U.P. and others 2010 (3) ADJ 659 (FB), which has been followed by this Court, while passing the order dated 28.11.2014 in Writ C No.12737/2013 and as such, full fledged inquiry is necessary and it would require service of the charges, alongwith material in support of each charge, the information about the place and date of inquiry, the statements of persons on whose complaint inquiry was started or in a case of suo motu inquiry, the statements of the persons appearing before the Enquiry Officer. Merely on vague and evasive charges, suspension order has been passed and as such, this Court should come for rescue and reprieve the petitioner. 7. On the other hand, learned Standing Counsel has vehemently opposed the writ petition and submits that against the order impugned the petitioner has got efficacious alternative remedy to file an appeal before the Commissioner of the Division. Once the proceeding has not been finalized in the matter on account of pendency of the writ petition and on account of the interim order so accorded in the writ petition, then the petitioner has also got efficacious remedy to file detailed objections to the licensing authority and the licensing authority would be at liberty to pass appropriate order and on both the accounts the writ petition is liable to be dismissed. He has also submitted that once the matter is pending since the year 2018 and on account of the interim order, no final order has been passed in the matter and in case the Court is inclined to interfere in the matter, then the enquiry may be directed to be conducted by an independent agency, without influencing with any of the observations so made by the authorities or the enquiry, which has been allegedly conducted on the dictate of the superior officials. 8. The said proposal has been voluntarily accepted by Shri K.S. Kushwaha, learned counsel for the petitioner. 9. Considering the facts and circumstances of the case, without expressing any opinion on the merits of the issue and with the consent, the writ petition stands disposed of with direction to the District Magistrate, Mau to enquire into the matter independently, without influencing with any of the proceedings, which have been taken place in the matter and finalise the proceeding in accordance with law and in the light of the Government Orders dated 29.7.2004, 16.10.2014, Uttar Pradesh Essential Commodities (Regulation of Sale and Distribution) Control Order, 2016 and UP. Food Security Rules, 2015 and Full Bench decision of this Court in Puran Singh (supra) expeditiously and preferably within two months from the date of production of certified copy of this order. The suspension order dated 20.4.2018 would be subject to the final decision of the District Magistrate, Mau.