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2019 DIGILAW 412 (ALL)

Sukesh Kumar v. State of U. P.

2019-02-15

MAHESH CHANDRA TRIPATHI

body2019
JUDGMENT : MAHESH CHANDRA TRIPATHI, J. 1. Sri Pankaj Kumar Gupta appears for the petitioner and Sri Apurva Hajela, learned Standing Counsel appears for the State-respondent. 2. Petitioner is before this Court assailing the impugned cancellation order dated 23.6.2018 passed by Sub Divisional Magistrate, Meja, Allahabad/fifth respondent as well as the order dated 7.12.2017 passed by District Magistrate, Allahabad/second respondent, with a further request to quash the re-enquiry report dated 31.5.2018 passed by Supply Inspector, Meja, Allahabad/sixth respondent. 3. Learned counsel for the petitioner, in support of his submissions, has relied upon the order dated 7.12.2017 (annexure no. 4 to the writ petition) wherein the District Supply Officer, Allahabad had proceeded to observe on the basis of enquiry, allegations so leveled against the petitioner were partly proved and had recommended imposition of forfeiture of security amount of Rs. 5,000/- restoring the contract of the shop. The said recommendation was rejected by the District Magistrate in two lines order on the same day and further directed to hold denovo/re-enquiry, which is illegal and bad in law. Thereafter, in compliance of the said order, the Supply Inspector, Meja proceeded for re-enquiry without giving any show cause notice to the petitioner and submitted report before the Sub Divisional Magistrate, Meja on 31.5.2018 and on the basis of said ex-parte enquiry report, the order impugned has been passed, whereby, license of the petitioner has been cancelled, which is against the principles of natural justice. 4. Learned counsel for the petitioner, in support of his submissions, has placed reliance upon judgment of this Court passed in Writ-C No. 10039 of 2013 Kaleem Ullah Khan Vs. State of U.P. & Ors. and as such it is sought to be contended that the petitioner ought to have been permitted to participate in the aforesaid inquiry. The statements of the complainants should have been recorded in the presence of the petitioner, and without furnishing the copy of the statements of the complainants to him, 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. 5. 5. Learned counsel for the petitioner further submits that it was incumbent upon the inquiry officer to follow the procedure, which is prescribed in Government Order dated 29.07.2004, which provides the procedure for suspension/cancellation of fair price shop licence, so that the officers cannot proceed in illegal manner, and unnecessary litigation may be avoided. He also placed his reliance upon a Division Bench judgment of this Court in Civil Misc. Writ Petition No. 58470 of 2005 (Harpal Vs. State of U.P. and others), decided on 26.2.2008, reported in 2008(3) ADJ 36 (DB). For ready reference the relevant paras nos. 9 to 15 are reproduced here in below:- "9. From a reading of Clause 30 it is clear that the Uttar Pradesh Scheduled Commodities Order, 1990 was superseded and repealed. Clause 31 of 2004 Order states that it will have effect irrespective on any thing contrary to it contained in any earlier order issued by the State Government. The 2004 Order was issued by the State Government for maintaining the supplies of food grains and other essential commodities and for securing their equitable distribution and availability at fair prices. Its Clause 21 is concerned with monitoring of fair price shops by the food officer and he was to make regular inspections. Clause 22 of the Order gave power to the Food Officer and other officers the power of entry, search and seizure and Clause 23 gave power to the State Government to authorize any person to inspect the stocks of scheduled commodities other than the officer mentioned in Clause 22. So far as the maintenance of supply of food grains and other essential commodities and their distribution and availability at fair price shop was concerned the 2004 Order provided stringent methods to deal with the erring licensees of fair price shops. But the 2004 Order did not provide any procedure for suspension/cancellation of the licences or agreement of fair price shop licensees. The 2004 Order did not lay down any procedure as to how and in what manner the licence/agreement of a fair price shop licensee/agent could be suspended or cancelled nor any time frame had been provided. On the other hand, the Government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. On the other hand, the Government order dated 29.7.2004 prescribes the procedure for taking recourse to suspension/cancellation by the officers and fixes a time frame for taking action against the licensees. The Government order dated 29.7.2004 does not contain any provision which is contrary to 2004 order. The 2004 Order has not superseded the Government order dated 29.7.2004. The G. O. dated 29.7.2004 and 2004 Order dated 20.12.2004 operate in different fields with the same object to ensure equitable and fair distribution of essential commodities to the people. We are of the considered opinion that the G.O. dated 29.7.2004 and the 2004 Order dated 20.12.2004 are valid and are still in force and are applicable in the State of Uttar Pradesh. 10. The next question is whether the impugned suspension order has been passed in violation of principles of natural justice? From the perusal of the suspension order it is clear that no opportunity of hearing was afforded to the petitioner either at the time of enquiry or before passing of the order suspending the fair price shop licence/agreement of the petitioner. In the counter-affidavit it had not been stated that opportunity of hearing was given at any stage. The enquiry was conducted behind the back of the petitioner. The entire proceedings were in violation of the principles of natural justice. The argument of learned Additional Chief Standing Counsel that principles of natural justice do not apply to the cases where fair price shop licence had been granted in view of the decision in Gopi's case, cannot be accepted. The G.O. dated 29.7.2004 clearly mandates and directs the authorities to comply with the principles of natural justice before suspending/cancelling fair price shop licences/agreements. It appears that this G.O. dated 29.7.2004 was not placed before the Division Bench which decided Gop's case and in Ignorance of this Government order the decision has been rendered and the decision has been passed in sub-stlientio in view of the law declared by the Apex Court in State of U.P. and another v. Synthetics and Chemicals and Anr. 1993 (41) ECC 326. Since the G.O. dated 29.7.2004 was not considered by this Court the decision in Gopi's case cannot be said to be a good law or a precedent. 11. 1993 (41) ECC 326. Since the G.O. dated 29.7.2004 was not considered by this Court the decision in Gopi's case cannot be said to be a good law or a precedent. 11. The next question is whether the petitioner has to be relegated to alternative remedy of filing an appeal to challenge the suspension order which has been passed in violation of principles of natural justice? The learned Additional Chief Standing Counsel has vehemently urged that even if there was violation of principles of natural justice the petitioner had an alternative remedy to file an appeal before the Commissioner challenging the suspension order. It is true that the suspension or cancellation of a fair price shop licence could be challenged under Clause 28(3) of the Uttar Pradesh Scheduled Commodities Distribution Order, 2004 before the concerned Divisional Commissioner, but the appeal under Clause 28(3) lies only against the suspension or cancellation of agreement of the fair price shop. But where an order is passed suspending/cancelling the fair price shop licence/agreement in violation of principles of natural justice the alternative remedy would not be a bar and a writ petition would be maintainable under Article 226 of the Constitution of India. It has been held by the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors. AIR 1999 SC 22 that even if an alternative statutory remedy is available it would not be a bar in maintenance of a writ petition under Article 226 of the Constitution in at least three contingencies, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. We have already held that it was mandatory for the authorities/officers to comply with the principles of natural justice before suspending/cancelling the fair price shop licences/agreements. Therefore, we are of the considered opinion that the impugned suspension order has been passed in violation of principles of natural justice, the writ petition filed by the petitioner without availing the alternative remedy of appeal, is maintainable under Article 226 of the Constitution. 12. The last question is whether on merits the suspension order is liable to be set aside? 12. The last question is whether on merits the suspension order is liable to be set aside? In view of the findings recorded by us that the suspension order was passed in violation of principles of natural justice, it is not necessary to examine whether the order suspending the licence of the petitioner was in 'accordance with Government orders, but since the Additional Chief Standing Counsel has vehemently attempted to defend the order on merits, we consider it necessary to examine the correctness of the suspension order in brief. The petitioner's fair price shop licence/agreement has been suspended. The suspension order does not disclose that any opportunity of hearing was given to the petitioner. It appears that Sub-Divisional Magistrate, Faridpur, Bareilly on the basis of oral complaints of the villagers got an enquiry conducted against the petitioner on 27.5.2005 and in the enquiry it was found that the shop was closed and rate board was not put outside the shop. The fair price shop licensee was charging Rs. 12 per litre in excess of the scheduled price of kerosene oil which was violation of condition No. 24 (Ga) of the licence/agreement. In the enquiry ration cards were also inspected and it was found that every month kerosene oil was not properly distributed. Sugar was also not properly distributed to persons who were below the poverty line which was violation of condition No. 3 of the licence/agreement. The shop of the petitioner was suspended and attached to another fair price licensee Devendra Kumar Pathak. It is not mentioned in the suspension order that who conducted the enquiry and when? It is also not clear that if the shop was closed at the time of enquiry then from where this fact was revealed that the petitioner was charging Rs. 12 per litre in excess of scheduled price of kerosene oil and from where the ration cards were inspected by the enquiry officer. The impugned suspension order does not disclose that any show-cause notice was issued to the petitioner to submit his reply as to why the petitioner's licence may not be cancelled. According to learned Counsel for the petitioner on the basis of such vague allegations licence/agreement of the petitioner could not be suspended. He has placed reliance on the decisions of this Court in Civil Misc. Writ Petition No. 60978 of 2005, Smt. Alka Rani v. State of U.P. and Ors. According to learned Counsel for the petitioner on the basis of such vague allegations licence/agreement of the petitioner could not be suspended. He has placed reliance on the decisions of this Court in Civil Misc. Writ Petition No. 60978 of 2005, Smt. Alka Rani v. State of U.P. and Ors. decided on 14.9.2005. The order of the Division Bench is extracted below: "We have heard the learned Counsel for the petitioner and the learned standing counsel. Petitioner's fair price shop licence was suspended and by the impugned order dated 22.8.2005 it has been cancelled. The cancellation order says that despite opportunity the petitioner did not submit any reply. 6. Normally, we would have directed the petitioner to avail alternative remedy of appeal, but we find from the show cause notice (Annexure-4 to this writ petition) that almost all the charges are absolutely vague without giving any specific instance and without mentioning any material on the basis of which each of the charges is proposed to be proved against the petitioner. For example when charge No. 2 says that distribution according to entitlement of ration cardholders has not been made every month, the notice should also have indicated when and to which card holders distribution was not made. Similarly, when charge No. 4 says that kerosene oil is being sold at the rate of Rs. 11 per litre, it should have been disclosed when and from which person such extra value was charged. 7. Without specific instances of this kind and without informing the material which is sought to be read against the petitioner in support of these charges, no proper effective defence or reply was possible. The only thing, which the petitioner could have done, was to make an equally vague denial that he was not guilty of these charges, which ultimately would lead nowhere. Levelling of charge is easy, proving of charge is another matter. A person can be punished for proved charges and not for levelled charges. The standard of proof may vary but nevertheless proof must be there. If evidence is there to prove charges, this Court will not go into sufficiency of the evidence. But a finding based on no evidence is not sustainable. 8. In the circumstances, we find that the impugned order is based on no material. The writ petition is allowed. The impugned order dated 22.8.2005 is quashed." 13. If evidence is there to prove charges, this Court will not go into sufficiency of the evidence. But a finding based on no evidence is not sustainable. 8. In the circumstances, we find that the impugned order is based on no material. The writ petition is allowed. The impugned order dated 22.8.2005 is quashed." 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. 14. For the aforesaid reasons, we are in agreement with learned Counsel for the petitioner that the impugned suspension order is vague and on the basis of which petitioner's fair price shop licence/agreement could not be cancelled and the impugned order deserves to be quashed. 15. In the result, this writ petition succeeds and is allowed. The impugned suspension order dated 25.5.2005 passed by respondent No. 2, Annexure-1 to the writ petition, is quashed." 9. Learned counsel for the petitioner submits that neither the respondent paid any heed on the enquiry report dated 7.12.2017, which is the best evidence for taking any decision regarding the allegations before cancelling the license nor the petitioner was extended any opportunity to defend himself before cancellation of the fair price shop and as such the entire action taken by the respondents is in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004). Admittedly, the procedure has not been adhered, therefore, cancellation of allotment of fair price shop license, is illegal and against the principle of natural justice. Admittedly, the procedure has not been adhered, therefore, cancellation of allotment of fair price shop license, is illegal and against the principle of natural justice. The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:- "35. Para 4 and 5 of the Government Order clearly permits full-fledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004." 10. It is contended that the judgment of Puran Singh (Supra) has also 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 before cancelling the agreement 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. The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ. 11. In support of his submissions, learned counsel for the petitioner has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732 . Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:- "It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:- "It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75 ; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 ; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 ; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 SCC 259 Canara Bank vs. V.K.Awasthy ( 2005 (6) SCC 321 ), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ( (2007) 6 SCC 668 ) Devdutt vs. Union of India and others (2008 (3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. ( 2014 (5) ADJ 697 )." 12. Per contra, Sri Apurva Hajela, learned Standing Counsel submitted that the petitioner was warned on several occasions for irregularities committed by him in the distribution of essential commodities to the cardholders. He further submits that the order dated 7.12.2017 is only an order to verify the affidavits given by the petitioner. The petitioner was given full opportunity of hearing before passing the order of cancellation. It is further submitted that the affidavits submitted by the petitioner which were earlier not verified, were only verified by the order of the District Magistrate dated 7.12.2017, which is correct exercise before passing the order impugned as such no interference is required by this Court. It has also been contended that the petitioner has alternate remedy of filing appeal against the order impugned and as such the writ petition is liable to be dismissed on this ground alone. 13. Heard rival submissions and perused the record. The above said factual aspect has not been disputed by learned Standing Counsel. It has also been contended that the petitioner has alternate remedy of filing appeal against the order impugned and as such the writ petition is liable to be dismissed on this ground alone. 13. Heard rival submissions and perused the record. The above said factual aspect has not been disputed by learned Standing Counsel. Learned counsel for the petitioner in support of his submissions has placed reliance on Clause 2 (i) of the Government Order dated 29.7.2004, which for ready reference is reproduced as under:- **mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk;A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrka, izFke n`"V;k fl) gks jgh gSas ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk; fd mldh nqdku D;ksa u fujLr dj nh tk;A ;fn izkjfEHkd tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns'k@dkj.k crkvks uksfVl ,d ^Lihfdax vkMZj^ gksuk pkfg, rFkk mlesa izkjfEHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gSA** 14. So far as the factual aspect is concerned, learned counsel for the petitioner has placed reliance upon the averment contained in para 11 and 14 of the counter-affidavit filed by the State, wherein, it has been accepted that after perusing the report and proposal sent by the Sub Divisional Magistrate, Meja, the District Magistrate was of the opinion that affidavits submitted by the petitioner were not verified thus directed the authorities to get the affidavits submitted by the petitioner in his favour verified from the cardholders who had given the affidavits. As such no notice was required to be given to the petitioner only the verification were to be done. But at the same time he has reiterated relying on the said verification, it has been averred in para 14 of the counter-affidavit that several affidavits were found to be misleading. The said finding of fact has been recorded allegedly on the basis of directions of the District Magistrate for verification of the said affidavits. But at the same time he has reiterated relying on the said verification, it has been averred in para 14 of the counter-affidavit that several affidavits were found to be misleading. The said finding of fact has been recorded allegedly on the basis of directions of the District Magistrate for verification of the said affidavits. At the said stage, the petitioner had not been incorporated in the enquiry and behind his back, such finding of fact has been recorded as such it is admitted situation, the order impugned is based upon such verification. Such action of the respondents are hit by principles of natural justice and cannot sustain. 15. Admittedly, in the present matter, the Authority concerned has cancelled the fair price shop licence of the petitioner merely on the basis of ex-parte re-enquiry report and at no point of time, the Authority has adhered the procedure prescribed as per the Government Order dated 29.07.2004, wherein, full fledged mechanism has been provided therein for initiation of an inquiry and finalization of the proceeding. 16. In the facts and circumstances, this Court is of the considered opinion the Government Order is clear to the extent where the discrepancies are so serious and the same is writ large then only the extreme step should be taken for cancellation of the license. As such, the order impugned cannot sustain in absence of proper inquiry which is sought to be conducted in pursuance of Government Order dated 29.07.2004 and accordingly, the same is set aside. The writ petition stands allowed. The license of the petitioner be restored forthwith and the authority concerned is directed to ensure that the petitioner may be permitted to lift the quota from the next month. However, this order would not preclude the respondents to proceed on merit of the case.