Dirgaj vs Commissioner Lko. And 3 Ors.
2013 Latest Caselaw 5319 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
		Writ Petition No.1879 (MS) of  2008
 
Dirgaj                                                                      Petitioner 
 
                                           Vs.
 
Commissioner, Lucknow Division, Lucknow& Ors.  Opp. Parties 
 
                                            and
 
                     Writ Petition No.3181 (M/S) of 2002
 
Rakesh Chandra Awasthi                                         Petitioner 
 
                                           Vs.
 
State of U.P. through Secretary Food Department
 
and others                                                               Opp. Parties 
 
                                         and
 
                     Writ Petition No.4792 (M/S) of 2007
 
Ashok Kumar                                                            Petitioner 
 
                                             Vs.
 
State of U.P. through its Secretary Department of
 
Food and Civil Supplies                                             Opp. Parties
 
                                           and
 
                           Writ Petition No.4291 of 2008
 
Onkar Nath Dubey                                                      Petitioner
 
                                              Vs.
 
Commissioner Allahabad Division,Allahabad         Opp. Parties.
 
Hon'ble Shri Narayan Shukla,J. 

Since all the above noted writ petitions are based on common facts, therefore, they are being decided by following common orders.

Heard , learned counsels for the petitioners as well as learned Standing Counsel.

It is common knowledge that the State Government has made a system of appointment of dealers of fair price shops to provide rations at cheap rates to the common people particularly, who are below poverty line.

Since the performance of the various authorities have not been satisfactory, the Courts time to time, on being noticed so, have shown their anguish over this problem in many a realm.

Regard being had to the significance of the issue, the magnitude of the problem in praesenti I intend to focus the various measures adopted by the State Government to ensure the proper and effective implementations of Public Distribution System as to achieve its object and purpose.

For the control of the production , supply and distribution of, trade and commerce, in certain commodities the Central Government has enacted, the Essential Commodities Act,1955 ( In short Act). The Central Government as well as the State Government both derive powers under Entry 33 of List 3 Concurrent List of the seventh schedule framed under Article 246 of the Constitution of India to make laws on the subject of trade and commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods by the same kind as such products;

(b) foodstuffs, including oil cakes and other concentrates;

(C) cattle fodder, inducing oil cakes and other concentrates;

(d)raw cotton, whether ginned or unginned, and cotton seed; and

(e) raw jute.

In the interest of public at large the State Government has made certain amendments in the Act and it has issued several Government Orders as well as the control orders to control the production, supply and distribution of the essential commodities for which the public distribution system has also been introduced.

In order to do more workable of the public distribution system the State Government has issued circular dated 3rd July, 1990 providing the various provisions to establish the fair price shop at the level of every Gram Sabha having at least 4000 units with the consultation of the Gram Sabha having obtained in its open meeting. It provides the categories of agents of fair price shops. It also proposes certain measures in default of proper distribution to be taken against the shop keepers as well as the officer concerned deputed by the District Magistrate to supervise the distribution work, further for suspension/ cancellation of shop and fresh allotment.

The next Government Order dated 17 th August, 2002 introduced the application of reservation system in allotment/ selection of fair price shop to different categories viz., the Scheduled Castes, Scheduled Tribes and Other Backward Castes. It provides that after determination of the categories of shops particularly in the rural area the shops shall be selected in open meeting of Gram Sabha and a panel of three names shall be prepared and sent to the committee constituted under the Chairmanship of Sub Divisional Officer for appointment of agent.

On 29 th July, 2004, the State Government issued another circular whereby it has determined the procedure of suspension/ cancellation and attachment of fair price shops established at the rural and urban areas. The State Government, in exercise of power provided under Section 3 of the Essential Commodities Act also notified the U.P. Scheduled Commodities Distribution Order, 2004 on 20 th December, 2004 for proper distribution and storage of the commodities.

Through the aforesaid control order, the State Government made provisions for appointment of various authorities to supervise the distribution of the commodities and to issue ration cards to the eligible persons.

The aforesaid control order assigned the duties to the Food Officer to ensure proper monitoring of the fair price shop and in furtherance of it a regular inspection of fair price shop shall be made not less than once in a month in urban areas by himself and in rural areas by the Supply Inspectors. It also provided that the competent authority shall ensure constitution of vigilance committees / administrative committees ( Gram Sabha Level) to monitor the functioning of the fair price shop. The relevant paragraph 21 of the U.P. Scheduled Commodities Distribution Order,2004 ( In short Distribution Order,2004) which is very relevant to determine the controversy is extracted below;

" 21(1) A Food Officer shall ensure proper monitoring of fair price shops and prescribed model sale register, stocks register and ration card register in accordance with the order issued by the State Government.

(2)Food Officer shall ensure regular inspection of fair price shop in his area not less than once in a month in urban area and not less than once in a month in rural area by the supply inspector. The State Government may issue order specifying the inspection schedule, list of checkpoints and authority responsible for ensuring compliance of the said order.

3(i)Competent Authority shall ensure constitution of vigilance committees Administrative Committee ( Gram Sabha Level) at fair price shop shall monitor the functioning of the fair price shop. (ii)Meeting of such Committees shall be held on regular basis and in a manner as directed by the State Government.

(4)Competent Authority shall ensure a periodic system of reporting and the complete information in this regard shall be sent in the prescribed form as follows:-

(5)(i)By fair price shops to the District Authorities by the 7 th of of the month following the month for which allocation is made in Form A.

(ii)By the District Authorities to State Government by the 15 th of the month following the month for which allocation is made in Form-B.

(5)Competent authority shall ensure that Schedules Commodities are made available to agents in accordance with the roster prescribed by the State Government in this regard.

(6) Monthly allocation of food grains, sugar, kerosene and other Schedules commodities shall be supplied to the Agent only and that only on receipt of a certificate, issued by the concerning vigilance Committee Administrative Committee duly counter signed by the supply or Senior Supply Inspector or Village Development Officer of the area clearly mentioning that prior month's allocations have been distributed by the agent in accordance with the rules.

(7)Competent authority shall ensure delivery of one copy of allocation order made to fair price shop simultaneously to Gram Panchyat or Nagar Palika or Nagar Nigam as the case may be and Vigilance Committees or any other body nominated for monitoring the functioning of the fair price shops by the State Government.

(8) Competent authority and Food officer shall check the diversion, substitution or adulteration of Schedules Commodities. "

The State Government,it appears that, even after making the various provisions, as aforesaid to control the supply and distribution system of the scheduled commodities, failed to achieve the target of proper distribution of the scheduled commodities. Therefore, by means of Government Order dated 10 th August, 2007, it introduced a Supervisory Officer to be nominated by the District Magistrate for distribution of essential commodities to the ration card holders. The Government Order enshrines duty upon the District Magistrate to ensure the presence of Lekhpal of concerned circle/ Gram Panchayat Adhikari at the time of distribution. It also proposed penal action against the Supervisory Officers for the laches on their part in discharging the duty properly.

The Supervisory Officers have been assigned the duties to send report to the District Magistrate/ District Supply Officer with respect to the proper distribution of each and every month through the Sub Divisional Officer.

The Government Order dated 29 th July,2004 provides the procedure for suspension/ cancellation of attachment of the fair price shop established in the rural as well as urban areas. The said Government order provides that the fair price shop be not suspended merely on the complaint of anybody unless serous irregularities are established during the course of preliminary enquiry. The Government Order further provides that after preliminary enquiry if it is necessary to suspend the shop as aforesaid then the suspension order/ show cause notice be issued with speaking order mentioning all the irregularities found in the preliminary enquiry. The same procedure shall be applicable on the event of irregularities being found by the authorities during their surprise inspection. It further provides to complete the enquiry maximum within one month necessarily from the date of suspension of shop by providing opportunity of hearing to the shop keepers. In the event of punishment of cancellation of shop, there is a provision of appointment of a new agent within the maximum period of one month from the date of cancellation of shop. During this period there is a provision of attachment of suspended shop with another shop of adjoining Gram Sabha. Thus, the total period of attachment during the period of suspension/ termination is provided as two months.

Upon perusal of the records of the writ petitions, I find that there is a complaint of the petitioners of not providing proper opportunity of hearing. Somebodies complained that they were not provided the copy of preliminary inquiry report, and other complained that during the course of enquiry neither they were provided opportunity of cross-examination of the witnesses nor were provided the relevant documents relied upon against them. There is one more allegation that after completion of enquiry but before taking final decision, they were not provided copies of the Enquiry Report to say some thing on the proposed punishment. In the aforesaid manner they have reported the procedure adopted by the respondents to inquire their matter to be faulty.

In W.P.No.1879 (M.S.) of 2008 the petitioner states that the Enquiry Officer recorded the statements of some fake persons. Further the petitioner was not called upon to participate in the enquiry before the order of suspension. In this matter, the petitioner has also attached with his reply the affidavit of complainant in which the complainant has stated that he did not make any such complaint. After perusal of the record, I find that the petitioner was provided the charge sheet mentioning the charges specifically. The Enquiry Officer also recorded the statements of the card holders, who denied from receiving the commodities but the same was found endorsed in their ration cards. There is a report of ante dating in the ration cards. During the course of enquiry, it was also found that the petitioner run his shop through another person, namely, Ram Naresh Gupta, who is not authorized by the departmental authorities. After comparative study of the allegations as well as the provisions provided for enquiry vide Government Order dated 29 th July, 2004, I find that there is no scope of providing any opportunity of hearing to the agent of the shop during the course of preliminary enquiry. It is based on complaints. The statements of the complainant as well as the card holders and inspection of the relevant documents are the materials of the preliminary enquiry and if on the basis of it, the Enquiry Officer arrives at conclusion that there are serious irregularities in distribution of commodities, he shall record his satisfaction and pass an order of suspension of shop. Thus, he is under obligation to pass order of suspension and issue a show cause notice by mentioning irregularities serious in nature in the distribution of commodities having been found during the course of preliminary enquiry. Thereafter the Agent of shop has to file the reply of the show cause notice along with which it is open for him to produce the relevant documents also to disprove the allegations levelled against him.

So far as nature of enquiry is concerned, upon perusal of the relevant Government Order, I find that it is purely summary in nature as there is no scope of providing opportunity of hearing to the Agent of the fair price shops at different stages. Under the Government Order dated 29 th July,2004 the agent has been provided opportunity to submit the reply of show cause notice which includes the production of relevant records also to disprove the charges but there is no scope of issuing any second show cause notice on the proposed punishment, if any, as it is not provided under the Government Order. The Hon'ble Supreme Court has dealt with such a situation in the case of Chairman, Ganga Yamuna Gramin Bank and others Vs. Devi Sahai reported in AIR 2009 Supreme Court 2126 and held as under;

" Concededly again, the guidelines issued by NABARAD laying down the procedure to be adopted for disciplinary action in Regional Rural Banks were made part of the Regulations . Even after coming into force of Act No. 1 of 1988, regulations were not amended. Issuance of second show cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Such a provision could be laid down by reasons of a statute. The respondent does not enjoy any status. The service conditions of employees of Regional Rural Banks are not protected in terms of Article 311(2) of the Constitution of India."

The reason is that if the charges are found proved, there is only one punishment, that is cancellation of contract of shop. On being proved the charges no other punishment is provided under the Government order and/ or Distribution Order.

Before arriving at conclusion of punishment by Officer concerned, there is an ample opportunity for the agent to submit his stand. Therefore, I am also of the view that there is no occasion to provide the copy of the inquiry report to the agent of shop to submit any further reply after conclusion of enquiry rather after final order, if he feels aggrieved he has an opportunity to file an appeal as is provided under the Distribution Order, 2004 as well as under the Government Order dated 3.71990.

It is worth to observe that many times the complainant as well as ration card holders, who complained or gave statements against the shop keepers, file an affidavit specifically stating therein that either complaints or statements were under compulsion of some body or they flatly deny it rather show their satisfaction in distribution of essential commodities. Considering the local circumstances of the rural as well as urban areas, I am of the view that there may be several reasons to the complainants/ card holders to recant from their statement but it is not a good practice rather detrimental to the interest of the public at large. Therefore, their statements, at this stage, should be deprecated and not be relied upon in dealing with the matters.

In Writ Petition Nos.3181(MS) of 2002,4792 (MS) of 2007 and 4291 (M/S) of 2008 the petitioners have complained violation of principles of natural justice in the same very manner as above and have drawn the attention of this Court to rely upon the statements of card holders given subsequently showing their satisfaction in distribution of commodities. It has further been stated that the authority concerned has ignored the affidavits submitted by the ration card holders in favour of the agent of the shop.of the agent of the shop. Upon perusal of the record, I find that this case is also covered under the observations made in this order.

Clause 4 (3) of the Distribution Order, 2004 provides that the Agent of the shop, before enforcement of his appointment, shall enter into an agreement before the competent authority. The terms of the agreement lay down certain conditions for the Agent to run the shop. Clause 21 of the agreement provides that the Agent shall produce the details of lifting distribution of the scheduled commodities by the seventh day of next month before the competent authority. Under clause 22 of the agreement it is further provided that in breach of any of the terms of agreement the competent authority can seize of the security and cancel the agreement after providing opportunity of hearing. Clause 11 of the agreement empowers the competent authority to exercise the power of seizure and search of shop in accordance with the Distribution Order.. Clause 22 of the Distribution Order is extracted below;

"22((1) The Food Officer, the Competent Authority, the Senior Supply Inspector or Supply Inspector may within his jurisdiction with such assistance, if any, as he thinks fit.

(a) Require the owner, occupier or any other person in charge of any place, premises, vehicles or vessels in which he has reason to believe that any contravention of the provisions of this Order has been or is being, or is about to be made, to produce any book, account or other documents showing transaction relating to such contravention;

(b)Enter, inspect or break open and search any place or premises, vehicle or vessel in which he has reason to believe that any contravention of the provisions of this order has been or is being or is about to be made.

(c)Examine and seize any books of accounts and documents which in the opinion of such officer may be useful for or relevant to any proceeding under this order and return such books of accounts and documents to be person from whom they were seized after copies thereof or extracts there from as may be considered necessary and certified by the person to be correct have been taken.

(d)Seize any Scheduled Commodities, if he is satisfied that there has been contravention of this order;

(e) Send a report as provided in Section 6-a of the Act to the Collector of the District in which such seizure is made and the Collector may thereafter proceed to confiscate the Scheduled Commodities, animal, vehicles vessel or other conveyance so seized in accordance with the provisions of the Act.

(2) The provisions of section 100 of the Code of Criminal Procedure 1973 (Act No.2 of 1974) relating to search shall as far as may apply to search under this clause."

Thus, as aforesaid several checks and measures have been adopted by way of Distribution Order, 2004 to ensure the proper implementation of Public Distribution System but along with the Agent of the shop the lapses on the part of the competent authority cannot be denied .

As discussed above by means of circular dated 10th August, 2007 the State Government has issued directions to the District Magistrate to appoint the Supervisory Officer, who is under obligation to ensure the proper distribution of scheduled commodities in his presence. It has also been provided that the ration of the next month shall be issued only after their counter signatures of proper distribution of the commodities in the last month. But upon perusal of the record, I find that there are complaints of lapses in distribution of commodities for several consecutive months. Once there is a provision of not issuing ration until and unless the Supervisory Officer certifies the proper distribution of the ration in the last month. It is surprising that even after lapses found in distribution of commodities how the rations were released to the defaulter agents continuously so many months.

The Supervisory Officers have also been made accountable towards their duty but even after report of irregular distribution in the matters at hand I do not find any proposal of the competent authority to take necessary/ penal action against them. Therefore, it is advisable to the District Magistrate to take necessary action against the Supervisory Officers also on reporting of lapses in distribution of scheduled commodities in their areas , as is provided under clause 6 of the Circular dated 10 th August, 2007.

It is further provided that the Officers issuing ration should also be subjected for penal action as well as disciplinary action, who issue the ration without taking certificate of proper distribution of rations to the ration card holders. It is also duty of the concerned department of the State Government to ensure the strict compliance/ implementation of the Distribution Order, 2004 as well as the Government Orders issued time to time on the subject to strengthen the Public Distribution System. Therefore, I hope that the Chief Secretary of the State Government shall take necessary measures therefor.

Since in all the cases at hand the irregularities in distribution of scheduled commodities are well established, I am not inclined to interfere in the orders.

In the result, the writ petitions stand dismissed.

September 2 ,2013

Tripathi