Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 698 (JHR)

Balkesh Paswan, Son of Ram Charittar Paswan v. State of Jharkhand

2019-03-12

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. Learned counsel for the petitioner at the outset has sought for leave of this Court to make necessary corrections in the Paragraph No.1(I) as also the prayer portion of the writ petition wherein due to typographical error, in place of the order dated “20.05.2016” it has been typed as “11.02.2016”. After considering the impugned order which is contained at Annexure-6 it is evident that the same is dated “20.05.2018” and therefore the reference of “11.02.2016” has wrongly been made, in view thereof, learned counsel for the petitioner is directed to make necessary correction in Paragraph-1(I) as also the prayer portion of the writ petition in course of the day 2. This writ petition is filed under Article 226 of the Constitution of India wherein order dated 20.05.2016 passed by the Sub-Divisional Officer, Sadar, Medini Nagar whereby and whereunder the license has been granted under the Control Order, 1984 for running the shop under the Public Distribution System which has been cancelled as also the appellate order dated 16.12.2016 and revisional order dated 12.09.2018 by which the order passed by the Deputy Commissioner, Palamau, has been affirmed. 3. It is the case of the petitioner that a license under Public Distribution System has been granted in favour of the petitioner being license No. 08 of 1991 and since then he is carrying out the distribution of the goods but the case of the petitioner is that without any complaint from any quarter, all of a sudden a show cause notice has been issued to the petitioner on 11.02.2016 by which he has been asked to give reply as to why his license to run shop under the Public Distribution System be not cancelled and has been suspended on the ground of alleged misconduct and commission of irregularities as per Annexure-1. The petitioner has given his reply denying the irregularities but the Sub-Divisional Officer, Sadar, Medini Nagar, has cancelled the license against which the appeal as also the revision have been preferred but both the appellate as well as revisional authority have declined to interfere with the order passed by the Sub Divisional Officer, therefore, the instant writ petition has been filed. 4. Mr. 4. Mr. Amit Kumar Tiwari, learned counsel for the petitioner has raised the following grounds in assailing the order, that are:- (i) There is no consideration of the reply submitted by the petitioner in terms of the show cause. (ii) The Sub Divisional Officer, Sadar, Medini Nagar while cancelling the license has acted in pursuance to the report submitted by the Block Development Officer, Lesliganj, therefore, there is no active application of mind by the licensing authority. (iii) The petitioner has not flouted any of the terms and conditions of license and whatever food grains have been lifted by him that have been distributed amongst the card-holders. (iv) The report has been submitted on 05.02.2016 and immediately on the next date he has filed a representation clearing the position but the same has not been taken into consideration. (v) The appellate as well as the revisional authority have not taken into consideration there aspect of the matter while declining to interfere with the decision taken by the licensing authority as contained under Annexure-6. Learned counsel for the petitioner has relied upon the judgment passed by the Hon’ble Patna High Court in the case of Sita Ram Keshri Vs. The State of Bihar & Ors. reported in 2012 (2) PLJR, Laxmi Rai Vs. The State of Bihar & Ors. reported in 2013 (3) PLJR, and judgment passed by this Court in the case of Binod Bhagat @ Binod Kumar Bhagat Vs. State of Jharkhand & Ors. reported in 2019 (1) JBCJ 649. 5. Mrs. Chandra Prabha, learned S.C.-I appearing for the State-respondent while refuting/disputing the argument advanced on behalf of the learned counsel for the petitioner as also the ground urged, has submitted that there is serious irregularities committed by the petitioner being the licensee under the Public Distribution System for the reason that the petitioner being a licensee supposed to keep the stock register in the shop but admittedly on the day when the inspection of the shop was made, the stock register was not in the shop rather the petitioner was distributing the food article only on the basis of cash memo which itself suggests that the serious irregularity has been committed by the petitioner by not keeping the distribution. Stock register in the shop, the inspecting team after perusing that aspect of the matter and on the basis of the complaint received regarding less distribution of the food articles, has directed for conducting an enquiry by Block Development Officer, Lesliganj, who in course of the said aspect on 05.02.2016 has found the allegation, therefore, a show cause notice has been issued on 11.02.2016 by directing the petitioner to give reply as to why his license under the Public Distribution System be not cancelled for violation of the terms and conditions of the license, the petitioner has given reply but he has not disputed the irregularities pertaining to not keeping the stock register in the house rather it would be evident from the response to the show cause that the stock register was not used to be kept in the shop rather for the security purpose it is being kept in the house which suggests that the petitioner has admitted the irregularity and once there is admission of the irregularity, there is no need of further enquiry since the fact is not in dispute as per the irregularity committed by the petitioner in terms of the show cause notice. She further submits that it is not the first irregularity rather other similar irregularities have been committed which was detected in course of inspection at that time and the petitioner has been warned, petitioner has been allowed to run the Public Distribution System shop but in the second time the same thing has been repeated as such the authorities have committed no illegality by asking the show cause for cancellation of the license and what has been submitted by the learned counsel for the petitioner that there is no consideration of the given reply to the show cause, that is not correct as because as would be evident from Annexure-6 that ground urged by the petitioner has well been appreciated by the original authority and further the appellate authority as well as revisional authority, elaborately after discussing the nature of allegation, this is the reply given by the petitioner by the show cause, as also the past incident has concurred in the order passed by the Sub Divisional Officer, hence there is no infirmity in the same. 6. 6. Having heard the learned counsel for the parties and on appreciation of their rival submissions it is evident that the undisputed fact in this case is that license under the Public Distribution System has been accorded to the petitioner in the year 1991. The license contains certain terms and conditions in which one of the conditions is that whenever the inspection would be done of the shop, it will be incumbent upon the licensee to produce the stock register and other documents, if asked, as would be evident from the Condition No.7 stipulated in the terms and conditions of the license annexed as Annexure-13 to the supplementary affidavit. The competent authority has issued the license in favour of the petitioner, after commission of irregularities, has directed the Block Development Officer, Lesliganj to conduct an enquiry with respect to the genuineness of the allegation levelled against the petitioner in turn thereof, the Block Development Officer, Lisliganj has conducted an enquiry on 05.02.2016 in which he has found that the allegation of irregularities have been committed to the effect that the stock register is not lying in the shop, there is less quantum of the material which is being distributed to the card holders and the food articles were being distributed on the basis of making reference in the cash memo without making due entry in the stock register. 7. The licensing authorities by resorting to the provision of Control Order, 1984 has suspended the license of the petitioner and has also issued show cause notice for cancellation of the license. The petitioner has responded to the said show cause notice as has been annexed as Annexure-2, after going across the said response it is evident that the petitioner has not disputed the fact about not keeping the stock register in the shop rather his admission is that the stock register was in the house due to the security purpose and on the basis of cash memos only the sale is being made out, on that account the stock register has not been presented before the inspecting team. There is no dispute in the settled position of law that an enquiry is only to be contemplated if the fact is in dispute the reason is that if the fact will be disputed, then on enquiry, adjudication of the disputed fact would come but if the irregularity, if committed and admitted there is no need of enquiry it is for the reason that when the guilt has been admitted and the same is in admission it does not require any enquiry since the enquiry pertains to a finding of the disputed issues, reference be made to the judgment rendered in the case of Vijay Shankar Pandey Vs. Union of India & Anr. reported in AIR 2015 SC 326 , wherein it has been held that, if the allegation in the charge-sheet is not in dispute there is no need to investigate the same to arrive at a conclusion. However the licensing authority even going across the admission so far as it relates to not keeping the stock register in the shop but there are other allegations also, and going through the same has taken decision for cancellation of the license and also taken into consideration the factual aspect having been put by the enquiry report. Learned counsel for the petitioner has given much emphasis on the basis of report submitted by the enquiring officer, the order of cancellation has been passed but it does not find force from the material available on record as because enquiry was conducted on 05.02.2016 that is by way of fact finding on the basis of the irregularities having been alleged against the petitioner in course of the distribution of the food grains contrary to the terms and conditions of the license and after getting enquiry report, a show cause notice was issued on 11.02.2016 asking the petitioner to give reply which does suggest that the enquiry report is the fact finding thereafter the show cause notice has been issued in which, as has been stated hereinabove, the main allegation pertaining to not keeping the stock register in the shop has been admitted. It needs to refer that the public distribution shop is being run under the Control Order 1984, prior to the amendment for distributing the food grains to the people who are living below the poverty line, whatever the article is being lifted by the licensee a thorough quantum of the lifting of the food grains is to be maintained in the stock register and it is to be compared after its distribution amongst the card holders that is for the purpose as to whether the food grains has been distributed amongst the card holders or not and that is the main register to be looked into for consideration for assessing of irregularities having been complained against the said licensee of the Public Distribution System shop therefore the said stock register is to be kept in the shop it is for the reason that whenever the food articles is being sold out the same is first to be entered in the stock registered along with the signature of the card holders to prove its genuineness to see as whether the food articles has been sold out in favour of the genuine card holders but very surprisingly the stock register was not available in the shop rather it is the case of the petitioner that it is being kept in the house and not available in the shop. Licensing authority after looking into the aforesaid aspects of the matter, has found that the reply given by the petitioner is not satisfactory as because the stock register has not been kept in the shop rather the food grain articles have been distributed only on the basis of cash memos and there is less selling out of the food grain articles in favour of the card holders and therefore, the license has been cancelled and hence it cannot be said that the licensing authority has not applied its mind rather the perfect reason having been annexed as Annexure-6. The said order has been questioned before the appellate authority as also before the revisional authority who also after going across the enquiry report, nature of allegation and the show cause have concurred with the finding and the reasoning recorded by the original authority. The said order has been questioned before the appellate authority as also before the revisional authority who also after going across the enquiry report, nature of allegation and the show cause have concurred with the finding and the reasoning recorded by the original authority. The petitioner has filed the petition for issuance of writ of certiorari and it is settled position of writ of certiorari can be issued if there is any error apparent on the face of record. The High Court while issuing the writ of certiorari is not supposed to act as an appellate court, this Court has not found any error on the face of record, therefore, it is not a case where this Court exercise its power under Article 226 of the constitution of India for issuing the writ of certiorari. The petitioner has tried to impress upon the Court by referring to the other documents submitted after show cause, but it is settled position of law that the documents at the time of filing the show cause is to be seen and no other documents as such the same is not fit to be considered. The petitioner has further tried to impress upon this Court by referring to the order passed by the Hon’ble Patna High Court in the case of Sita Ram Keshri (supra), the factual aspect of the case as has been appreciated by this Court wherein the Hon’ble Patna High Court after looking to the Paragraph-6, thereof has found that the specific relief in not selling of Kerosene Oil as has been taken by the said case has not been appreciated while dealing with the show cause by the licensing authority and on that account it has been held that there is no proper appreciation of the factual aspect. It is not in dispute that if anything is being pointed out by the concerned, against whom the show cause notice has been being issued, the authority while considering is to deal with each and every aspect of the matter and thereafter to take decision otherwise it will be said that there is non-application of mind It is equally settled that a judgment is not universally applicable, it is to be tested on the basis of factual aspect involved in each and every case but herein, in the instant case, the petitioner has committed irregularity of keeping the stock register in his house and further the fact about the distribution of less quantum articles have been corroborated in the enquiry report as would be evident from the show cause reply as contained under Annexure-2 that there is no denial of the petitioner that he was not selling less quantum of food materials, therefore, the said judgment is not applicable in the facts and circumstances in the instant case. Judgment passed by Hon’ble Patna High Court in the case of Laxmi Rai (supra), after going across the factual aspect it is evident from the aforesaid order passed by the licensing authority, the decision was taken without recording any reason and therefore, it has been held that if the order leads to civil consequence it is the requirements of law that a reason is to be reflected in the order, but herein, in the instant case as has been observed in the preceding paragraph the factual aspect is quite different to that of the said case and as such the order is not applicable. So far as the order passed by this Court in the case of Binod Bhagat @ Binod Kumar Bhagat (supra), the petitioner has given much emphasis upon the fact of active consideration of the factual aspect reflecting application of mind by giving reason therein and to add his submission the said judgment has been relied upon. So far as the order passed by this Court in the case of Binod Bhagat @ Binod Kumar Bhagat (supra), the petitioner has given much emphasis upon the fact of active consideration of the factual aspect reflecting application of mind by giving reason therein and to add his submission the said judgment has been relied upon. This Court after perusing the factual aspect involved in the said case has found that the issue therein was that a show cause has been issued which was responded by the petitioner of the aforesaid writ petition pertaining to the unauthorized occupation of the landed property in question, but without dealing with the factual aspect pertaining to the relevant records of right the petitioner has held to be unauthorized occupant and in that pretext the judgment has been passed by this Court, holding therein that a show cause notice is not mere formality rather if the show cause notice is being issued, it is the duty of the concerned authority to deal with by considering the response and the reasons, which is to be reflected from the face of the order and in absence thereof it cannot be said that there is active consideration of the mind of the authority, but herein, in the instant case the original authority has discussed the irregularity pertaining to less selling of the quantum and admission of the petitioner of not keeping stock register in the shop as also perusing the enquiry report passed order which has been discussed in detail by the appellate as well as by the revisional authority, therefore, it is not a case in the nature where the response given in terms of the show cause has not been considered. Ratio laid down in the aforesaid case is not applicable in the facts and circumstances of the case. 8. This Court has observed hereinabove regarding the scope of writ of certiorari and is of the view that since there are concurrent findings of the competent authorities, the appellate as well as revisional, therefore, it will not be appropriate for this Court to appreciate the factual aspect assuming the power of the appeal for the reason discussed hereinabove. This Court is of the considered view that it is not a case where interference is required by issuing writ of certiorari in exercise of power conferred under Article 226 of the Constitution of India. 9. This Court is of the considered view that it is not a case where interference is required by issuing writ of certiorari in exercise of power conferred under Article 226 of the Constitution of India. 9. In view thereof, this writ petition lacks merit, accordingly fails and dismissed.