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2022 DIGILAW 766 (ALL)

Maniram Yadav v. State of U. P.

2022-05-13

SAUMITRA DAYAL SINGH

body2022
JUDGMENT : 1. Heard Sri S.M. Iqbal Hasan, learned counsel for the petitioner and Sri Shubhranshu Shekhar Singh, learned Additional Chief Standing Counsel for the State respondents. 2. Challenge has been raised to the order dated 04.07.2017 passed by respondent no.3/District Supply Officer, Ghaziabad as confirmed by respondent no.2/Additional Commissioner (Food), Meerut dated 25.01.2018. Thus, the fair price shop agreement of the petitioner cancelled by the District Supply Officer, has been confirmed. 3. Submission of learned counsel for the petitioner is, the entire proceedings were vitiated. They were occasioned by the political malafide. In any case, the fact allegations were wrong. No short supply had been made by the petitioner. The alleged statements of the beneficiaries (recorded ex-parte) at the preliminary enquiry stage were rebutted by the petitioner. Full fledged enquiry was not conducted and no adverse evidence emerged (of short supplies made) on the perusal of the records. In absence of full-fledged enquiry, the fair price shop agreement of the petitioner could not have been cancelled. 4. Thus, relying on full-bench decision of this Court in Puran Singh Vs. State of U.P. & Ors., 2010 (3) ADJ 659 and as applied in Smt. Santara Devi Vs. State of U.P. & Ors., 2016 (2) ADJ 70 , it has been submitted, the entire proceedings were vitiated. The petitioner has suffered for almost five years, since his fair price shop agreement was first suspended on 25.04.2017. 5. On the other hand, learned Additional Chief Standing Counsel has vehemently urged, there was no political interference. The concerned Minister had received written complaints on which he required action to be taken. In the inspection conducted on 09.04.2017, at around 3:30 pm, various discrepancies were unearthed including as to distribution of essential commodities in the name of a dead person namely, Raj Kishore who died in the year 2015. Further, numerous (102) 'Patra Grihasthi' card holders and (15) 'Antodaya' card holders were examined. 6. Relying on the statements of (15) 'Antodaya' card holders who alleged short supply of kerosene oil and food-grains and further relying on the statement of (61) 'Patra Grihasthi' card holders, it was alleged, the petitioner had either made short supplies or made no supplies of kerosene oil and food-grains. Based on those facts, a show cause notice was issued to the petitioner and his reply called. 7. Based on those facts, a show cause notice was issued to the petitioner and his reply called. 7. Though the petitioner denied the fact allegations, he did not to lead any evidence to falsify the facts found in the preliminary enquiry. Accordingly, the fair price shop agreement of the petitioner was cancelled by order dated 04.07.2017, after discussing the explanation furnished by the petitioner. Each allegation (11 in all) was examined and separate conclusions recorded. The petitioner was exonerated on some of the charges that were found not proven. However, with respect to charge of short supply of kerosene oil and food-grains to 'Antodaya' card holders, the fact allegations were largely found true. In any case, the petitioner did not make stock re-conciliation. Therefore, there is no material to disturb the finding recorded by the Licensing Authority. The Appeal Authority has rightly confirmed the order of cancellation of fair price shop agreement of the petitioner. 8. Having heard learned counsel for the parties and having perused the record, while no conclusions of fact are to be recorded in exercise of judicial review, it has to be ascertained, if proper procedure was followed in reaching the conclusions as have been reached by the Original Authority and as have been confirmed by the Appeal Authority. 9. As to the procedure, there can be no doubt, the full bench decision of this Court in Puran Singh (supra) as applied in Smt. Santara Devi (supra) would mandate -up to the stage of suspension order being passed, the proceedings may remain ex-parte. The preliminary enquiry may be conducted wholly ex-parte against the fair price shop agent and the material required behind his back. Further subjective satisfaction may be drawn to suspend the fair price agreement. To that extent, the challenge raised in the present writ petition cannot sustain. The allegation of political mala fide is also found unsubstantiated and incomplete. 10. The preliminary enquiry may be conducted wholly ex-parte against the fair price shop agent and the material required behind his back. Further subjective satisfaction may be drawn to suspend the fair price agreement. To that extent, the challenge raised in the present writ petition cannot sustain. The allegation of political mala fide is also found unsubstantiated and incomplete. 10. As to the further procedure to be applied after issuance of suspension order, in light of the full bench decision of this Court in Puran Singh (supra) as applied in Smt. Santara Devi (supra), it is mandatory that a proper show cause notice be issued to the concerned, wherein, in the event of dispute being raised as to the correctness of facts, in the preliminary enquiry and in face of oral statements being disputed, the concerned witness may be required to record their statements in the presence of fair price shop agent. 11. Thus, in Smt. Santara Devi (supra), this Court has observed as below: "8. It is obligatory upon the authorities to hold a full-fledged enquiry against the fair price shop dealer, after serving of the chargesheet 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 full-fledged enquiry was held as contemplated by the Full Bench decision on the basis of paragraphs 4 and 5 of the Government Order dated 29.7.2004. The petitioner was not even given any chargesheet 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. 9. 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." 12. 9. 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." 12. Only after such proceedings had been held, the reply furnished by the petitioner/fair price shop agent may be examined by the officer next higher in authority to the one who may have conducted the preliminary enquiry. 13. Once that was done, the stage of hearing would be reached. Therein, the parties may have been heard and appropriate orders may be passed. 14. Tested in that light, the impugned order passed in the present case is wholly laconic. Neither the statements relied against the petitioner were recorded in his presence nor any fresh statements are recorded during the course of the full-fledged enquiry following the suspension order. Reliance has been placed only to the statements recorded ex-parte against the petitioner at the stage of preliminary enquiry. While it may be true that the petitioner did not file affidavits of the beneficiaries, at the same time, it is equally true, the petitioner disputed the correctness of the fact allegations made against him. Therefore, the Original Authority was obligated to allow the full-fledged enquiry to arise wherein oral evidence may have been led in the presence of the petitioner. In that, the petitioner would have had a right to cross-examine any witness whose testimony may have been recorded against him. 15. Even as to the statement of the Observer, again, the same ought to have been recorded in the presence of the petitioner. Unless the person to be visited with civil consequences (as a result of the enquiry concluded), is given such fair opportunity, it is difficult to sustain the end conclusion, even if that be right. 16. As to stock reconciliation, in paragraph 9 of the Writ Petition, it had been clearly stated, the entire record of the petitioner had been seized on 09.04.2017. No denial has been made to that fact assertion in paragraph 7 of the Counter Affidavit. Therefore, on the principle of non-traverse, it has to be accepted that the entire records pertaining to receipt and distribution of essential commodities by the petitioner was available with the respondent authorities. No denial has been made to that fact assertion in paragraph 7 of the Counter Affidavit. Therefore, on the principle of non-traverse, it has to be accepted that the entire records pertaining to receipt and distribution of essential commodities by the petitioner was available with the respondent authorities. The impugned order is silent as to the fact consequences that may emerge from the perusal of those records. Thus, it is not the case proven against the petitioner that against full supplies received by it, it made short supplies or irregular supplies. 17. At this stage, learned Additional Chief Standing Counsel has further prayed for an opportunity to be granted to him to produce the record. In the first place, such opportunity has been sought wholly belatedly. Second, no order impugned before a Court may be defended on the strength of material that may have existed but may not have been considered, in the order itself. For both reasons, prayer made is declined. 18. Learned Additional Chief Standing Counsel further submits, limited enquiry may be permitted (at this stage) on two issues -namely, with respect to distribution of essential commodities in the name of a dead person and distribution of essential commodities prior to the designated date. Too much time has passed already to allow that enquiry to arise now. On the first issue (referred to by learned Additional Chief Standing Counsel) even if it is true and correct, it cannot be overlooked that that allegation was with respect to a single person for a period of two years. The primary responsibility of maintaining the Ration Cards was never on the petitioner but on the respondent authorities themselves. In any case, it would be too harsh now to allow for an order of punishment to arise against such fact allegation. The petitioner has already suffered a very heavy penalty. At most, that allegation may have invited minor penalty. As to the other fact allegation, in absence of any cogent material found on record by the Original Authority or the Appeal Authority of any short supply of food-grains or essential commodities established from their records maintained by the petitioner, a belated enquiry at this stage on that issue, in face of punishment already undergone, may amount to wastage of precious time. Oral evidence with respect to such facts (that took place five years ago), may not be credible or desirable to be allowed to arise at this late stage. 19. Therefore, the impugned orders are found to be contrary to law as may never be sustained by the writ court. 20. As to the relief that may be granted, as noted above, in normal course, the matter may have been remitted to the Original Authority to pass a fresh order after conducting a full and proper enquiry. At the same time, it cannot be overlooked, five years have passed since the petitioner's fair price shop agreement was suspended. The petitioner has already suffered a heavy penalty in absence of full-fledged enquiry. There are no special circumstances existing or noted as may warrant second opportunity to the respondent authorities to revisit the cancellation proceedings on same allegations. 21. Accordingly, the impugned orders dated 25.1.2018 and 4.7.2017 are quashed. Let the fair price shop agreement of the petitioner be restored forthwith. 22. Writ petition stands allowed. No order as to costs. 23. It is further made clear, present order may not prevent the State authorities from conducting any fresh enquiry for any fresh violation that the petitioner may be found to commit, after restoration of his fair price shop agreement, under this order.