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2022 DIGILAW 531 (ALL)

Maya Devi v. State Of U. P.

2022-04-08

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri Vishal Tandon along with Sri Mahendra Singh, learned counsel for the petitioner and learned Standing Counsel. 2. Sri Junaid Alam, learned counsel is also present. He has instructions from the complainant. His request for adjournment has been declined as the complainant is neither a party impleaded in the petition not there is any application for impleadment. 3. Present petition has been filed by the petitioner against the order dated 19.06.2021 passed by the Sub-Divisional Officer, Tehsil Tamkuhiraj, District Kushinagar whereby the said authority had cancelled the petitioner's fair price shop agreement for the Village Patherwa. The appeal filed by the petitioner to challenge the aforesaid order, has also been dismissed by the Joint Commissioner (Food & Civil Supply), Gorakhpur Division, Gorakhpur vide order dated 02.11.2021. 4. Brief facts giving rise to the present petition are, the petitioner who is a member of OBC, along with the complainant Sanjay applied for grant of a fair price shop at Village Patherwa. In that, the petitioner was successful. Allotment of the said fair price shop was made in her favour on 31.12.2016. After passage of almost three years, above described Sanjay made a written complaint alleging irregularities in distribution of food-grains etc. by the petitioner in the months of February and March 2017. On that, a notice was issued to the petitioner on 27.12.2019 without conducting any preliminary inquiry. However, the petitioner was required to show cause to that notice failing which, it was proposed, to initiate regular proceedings. In any case, she submitted a reply on 16.01.2020 and denied the fact allegations made against her. Thereafter, another similar notice was issued to the petitioner on 19.08.2020. 5. For the first time, on 24.11.2020 i.e. almost four years after allotment of the fair price shop to the petitioner, a chargesheet was issued. Perusal of the chargesheet reveals that the same is based solely on the fact allegations made by Sanjay with respect to the distribution of food-grains made by the petitioner, in the month of March 2017 (almost five years earlier). 6. The charges framed in the chargsheet are summarized as below:- (1) It was not cleared as to whom the essential commodities have been distributed by recording their descriptions against the name 'Ram'. That distribution was alleged to have been made against 291 units. (2) Food-grains were distributed twice to 43 units holders. 7. 6. The charges framed in the chargsheet are summarized as below:- (1) It was not cleared as to whom the essential commodities have been distributed by recording their descriptions against the name 'Ram'. That distribution was alleged to have been made against 291 units. (2) Food-grains were distributed twice to 43 units holders. 7. On 30.01.2021, a further notice was issued by the S.D.M. requiring the petitioner to submit a consolidated reply to all the complaints and their replications submitted by the complainant Sanjay. Legality of that procedure apart, the petitioner complied with that notice and submitted her reply dated 06.03.2021. In that, she fairly stated thus:- Being new to the trade, in the initial period, she admitted the possibility of mistakes. Thus, she admitted to the possibility of 16 units of food-grains distributed having remained from being recorded. She further stated that certain persons took advantage of ignorance or lack of inexperience of the petitioner and produced double print-outs of the quota allotted to them and they might have received supply against the same, twice. 8. Other than that, she specifically stated, no supply had been made to any person against the name 'Ram'. All distributions were made in the presence of neutral observer who had never raised any objection. Other than the above, the petitioner further emphasized, arising from unsuccessful effort to be appointed fair price shop agent, the complainant Sanjay was the only person aggrieved who made any complainant against the functioning of the petitioner. Thus, it was suggested, the complaint was motivated. It was further submitted, the petitioner's husband was suffering from Muscular Distrophy and was thus confined to bed. The fair price shop being run by the petitioner was stated to be the only source of livelihood available to the petitioner to meet the financial needs of the family. 9. The Licensing Authority proceeded to cancel the petitioner's license on 19.06.2012. That order has been affirmed in the appeal. 10. Learned counsel for petitioner submits that the charges of all supply claimed against the name 'Ram' were wholly incorrect. The statement of the observer Manoj Rai was recorded in the inquiry proceedings on 05.06.2021. He completely falsified the complaint allegations. Neither that observer was cross examined by the Enquiry Officer nor any adverse material was brought on record to doubt the correctness of the statement made by the observer. The statement of the observer Manoj Rai was recorded in the inquiry proceedings on 05.06.2021. He completely falsified the complaint allegations. Neither that observer was cross examined by the Enquiry Officer nor any adverse material was brought on record to doubt the correctness of the statement made by the observer. Relying on that, the Licensing Authority reached the conclusion-other than the complaint no other villager/beneficiary had lodged any complaint against the functioning of the petitioner. In fact upon being examined, the complainant candidly admitted to fair supply of food-grains having been made to him by the petitioner. 11. In such facts, the Licensing Authority recorded that the allegation of false supply shown against the name of 'Ram', was not correct. 12. Only because the petitioner candidly admitted to possibility of her mistakes in the initial period of her running the fair price shop, it has been hurriedly concluded that the petitioner was guilty. In reaching that conclusion, the Licensing Authority has reasoned that the petitioner did not make any effort to rectify her mistakes and she did not approach the authority with respect to the same. Thus, the original order is stated to be completely erroneous in reasoning. Once charge was found not proved, there survived no cause to cancel the petitioner's agreement on any doubt that may have survived. Instead of rectifying that mistake, the Appeal Authority has travelled one step further and reached a conclusion that the petitioner had made false supplies against the name 'Ram'. Inasmuch as the appeal therefrom had been filed by the petitioner alone, there existed no jurisdiction with the Appeal Authority to reverse the findings of the Licensing Authority, on that issue. 13. On the other hand, learned Standing Counsel has relied upon the fact allegations contained in the show cause notice and the observations and findings of the Licensing Authority as also the Appeal Authority. It has been submitted, inasmuch as the irregularities have been found committed by the petitioner, there is no error in cancelling the fair price agreement. 14. Sri Junaid Alam, learned counsel has also supported the submissions advanced by learned Standing Counsel. 15. Having heard learned counsel for parties and perused the record, in the first place, there is no dispute that the petitioner and the complainant Sanjay had both competed for allotment of the fair price shop at Village Patherwa. 14. Sri Junaid Alam, learned counsel has also supported the submissions advanced by learned Standing Counsel. 15. Having heard learned counsel for parties and perused the record, in the first place, there is no dispute that the petitioner and the complainant Sanjay had both competed for allotment of the fair price shop at Village Patherwa. The petitioner was successful and the agreement was executed in her favour. It also appears that the parties have been in some dispute other than the present case inasmuch as the Licensing Authority has referred to two criminal prosecutions. First, the petitioner had lodged FIR No.77 dated 09.03.2018 against the complainant Sanjay under Sections 354, 323, 504, 506 IPC. Also the complainant Sanjay had lodged FIR No.237 dated 11.07.2018 against the petitioner's husband and another under Section 147, 323, 504, 506, 352, 354, 379 IPC read with Section 3 (1)(d) of SC/ST Act, 1989. Third, it stands out-against the fair price shop agreement executed in favour of the petitioner on 31.12.2016, the allegation of illegality/irregularity committed relates only to the period February and March 2017. No other complaint formed the subject matter of proceedings before this Court. No other beneficiary made any complaint. Yet, the only complaint with respect to such violation emerged not earlier than 09.09.2019. By then two and half year had passed. During that the parties had instituted one FIR each against other. There is absolutely no denial to the fact that the observer Manoj Raj was examined in the inquiry proceedings. His statement was recorded on 05.06.2021. He completely falsified the complaint allegation. He further stated that the distribution of food-grains etc. had been made in accordance with law and there was no complaint whatsoever against the petitioner. He further denied false distribution of food-grains against the name 'Ram'. In such circumstance, the Licensing Authority concluded that there was no substance in the allegation of false distribution made against the name 'Ram'. 16. As to the second charge of double distribution made to 43 units and no distribution made to 16 units, no positive evidence was led during the inquiry. No person or beneficiary made any statement of short supply or no supply made by the petitioner. 16. As to the second charge of double distribution made to 43 units and no distribution made to 16 units, no positive evidence was led during the inquiry. No person or beneficiary made any statement of short supply or no supply made by the petitioner. In fact, it also appears from the findings recorded by the Licensing Authority that it was found that the said Sanjay made the complaint belatedly, yet, it was admitted to him that no short supply of food-grains had been made to him in the month of March 2017. That finding is recorded on the penultimate page of the order of Licensing Authority. In such state of proven or rather unproven facts, the second charge was wholly unproven. 17. Rather than reaching that conclusion, the Licensing Authority then proceeded on presumptions and conjectures. He has thus taken as adverse (the fair) conduct offered by the petitioner in making a statement as to existence of a possibility of some discrepancies having crept in the initial months of her activity as a fair price shop agent. That she explained on account of certain beneficiaries having attempted to obtain supply of food-grains twice, by producing a fresh print of their quota allotment. Also, she had admitted to a possibility of certain discrepancies having occurred in the entries recorded in the register as on few occasions, owing to a huge crowd having gathered for the purposes of obtaining supplies of essential commodities, she may not have been able to obtain signatures/thumb impressions of all beneficiaries. 18. Perusal of the reply submitted by the petitioner containing such fact statements does not give rise to any admission of guilt. In fact, plain reading of the language and contents of the reply indicates that the petitioner had honestly tried to explain the fact situation. In that she very candidly stated that it was possible that certain discrepancies exist. However, she pointed out the fact that she was new to the activity and that she also regretted, if such mistakes had occurred. No allegation arose for any time beyond the first two months of the agency. 19. In that she very candidly stated that it was possible that certain discrepancies exist. However, she pointed out the fact that she was new to the activity and that she also regretted, if such mistakes had occurred. No allegation arose for any time beyond the first two months of the agency. 19. In that fact, instead of taken into account otherwise admitted fact (recorded elsewhere in the order of Licensing Authority) that there was no complaint whatsoever against the petitioner except for the belated complaint made by the complainant Sanjay, the Licensing Authority chose to reach conclusion that the petitioner was guilty. 20. Such findings of the Licensing Authority are found to be perverse and based on imagination and not on material on record or facts proved before it. Unless it had been proved that the petitioner had issued food-grains to one or more non-beneficiary and/or it had been proved that any short supply had been made by the petitioner to any beneficiary, harsh consequence of cancellation of fair price shop agreement was not warranted. 21. The Appeal Authority, instead of rectifying the mistakes committed by the Licensing Authority, compounded the matter further. He chose to record finding of guilty on the first charge as well. In doing so, the Appeal Authority has clearly overlooked the fact that the Licensing Authority had returned a finding of charge not proved, in favour of the petitioner. There was no appeal against that finding. Thereafter, Appeal Authority had confirmed the findings of the Licensing Authority on the second issue and confirmed the cancellation order. 22. In short, the Licensing Authority erred in acting on presumptions and conjectures while dealing with the second charge levelled against the petitioner whereas the Appeal Authority has passed completely erroneous order both with respect to the first and second charge. Neither order is based on evidence or material on record or cogent reasoning nor the appeal order may be sustained with respect to the first charge. In the entirety of the facts and circumstances of the case, no useful purpose would be served to now set aside the matter and remit the matter to either of the authorities as more than five years have passed since the occurrence. The petitioner has already suffered a heavy penalty. In the entirety of the facts and circumstances of the case, no useful purpose would be served to now set aside the matter and remit the matter to either of the authorities as more than five years have passed since the occurrence. The petitioner has already suffered a heavy penalty. In absence of any material or evidence on record as may warrant a fresh or proper examination, no opportunity may be given to any party to lead any other or further evidence, at this belated stage. 23. In view of the above, the writ petition deserves to succeed. It is accordingly allowed. The orders dated 19.06.2021 and 02.11.2021 are quashed. 24. Let the fair price shop agreement of the petitioner be revived/restored within a period of two weeks from today.