Mishri Lal vs State Of U.P. And Others
2014 Latest Caselaw 9809 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 30
 

 
Case :- WRIT - C No. - 12097 of 2013
 

 
Petitioner :- Mishri Lal
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- Arun Kumar Verma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ran Vijai Singh,J.

Heard Sri Arun Kumar Verma, learned counsel for the petitioner and learned Standing Counsel .

By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 1.11.2006 passed by the Up Zila Adhikari Faridpur District Bareilly as well as order dated 24.12.2012 passed by the Commissioner Bareilly Division Bareilly in Appeal No. 194/40/06-07.

Vide order dated 1.11.2006, the petitioner's agreement to run fair price shop has been cancelled and security of Rs. 5000/- deposited by him has been forfeited. The shop was ordered to be attached with fair price shop agent Sri Genda Lal of Village Angadpur Khamariya. Whereas by the subsequent order dated 24.12.2012, appeal filed by the petitioner against the order dated 1.11.2006 has been dismissed.

While assailing the impugned orders, learned counsel for the petitioner contended that before cancelling the petitioner's agreement, no show cause notice/charge levelled against the petitioner was given to the petitioner, therefore he could not submit his reply. The Sub-Divisional Officer as well as Divisional Commissioner both have placed reliance upon the endorsement made by the official of their office that the copy of the suspension order dated 14.9.2006 has been served and believing on that, since the petitioner has not filed any reply to the grounds as stated in the suspension order, the petitioner's agreement to run fair price shop has been cancelled.

Learned counsel for the petitioner has invited attention of the Court towards paragraphs 6 of the writ petition, which reads as under :-

6.That it is wrong contention of the Commissioner Court that notice was served on petitioner in fact, it was neither served on petitioner personally nor it was served any adult member of petitioner family member. It cannot be said legally that notice was served upon the petitioner. It was wrongly noted on notesheet as mentioned by Additional Commissioner in his impugned order, that time petitioner and his family member

were not present in their home in his village and person appointed for service of notice (charge and suspension order) not come again to petitioner or his house in village.

The reply of paragraph 6 of the writ petition has been given in paragraph 8 of the counter affidavit filed by the State authorities duly sworn by Sri Udbhav Tripathi, Tehsildar, Faridpur, District Bareilly which reads as under :-

8.That the contents of paragraph no. 6 of the writ petition are not admitted as stated. In reply thereof, it is submitted that the said suspension order dated 14.9.2006 was served upon the petitioner.

It is noteworthy that through the said suspension order dated 14.9.2006, supply of essential commodities to the petitioner's shop was stopped and the same were issued to a nearby dealer Sri Ram Bharosey Lal. Besides the petitioner, copies of suspension order mentioning the fact of breaking of supply to the petitioner were also served to the whole sale dealers of food grain and kerosene oil, village Pradhan, Lekhpal and Gram Panchayat Adhikari concerned.

In the said suspension order, it has clearly been written as under :-

To quote in hindi

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Hence supply of the petitioner was seized and quota was issued to another nearby dealer Sri Ram Bharosey Lal, who started to distribute the same to the card holders of the petitioner's shop.

In these circumstances, it cannot be said that the petitioner had no knowledge about the said suspension order. In fact, the petitioner was well acquainted about with it. He knowingly and malafidely did not produce his reply and required stock and distribution record.

From the perusal of paragraph 6 of the writ petition as well as paragraph 8 of the counter affidavit, it transpires that in paragraph 6 of the writ petition, the petitioner has stated that no notice was served upon the petitioner personally or to any adult member of his family. There is vague denial in paragraph 8 of the counter affidavit by stating that it was served upon the petitioner without there being any proof brought on record showing that the show cause notice/cause of which reply was required was ever served upon the petitioner. On the contrary, it is stated in paragraph 8 that after suspension of the petitioner's agreement, his shop was attached with another fair price shop agent and information in this regard was given to the whole sale dealers of foodgrains and kerosene oil, village Pradhan, Lekhpal and Gram Panchayat Adihkari concerned. Taking shelter of the

information sent to the above persons, it is stated that since all those persons have been served therefore it cannot be said that the petitioner had no knowledge of the suspension order.

A Full Bench of this Court in Puran Singh Vs. State of U.P. and others 2010 (3) ADJ 659 (FB) has held as under :-

35. Para 4 and 5 of the Government Order clearly permits fulfledged 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.

As per decision of Full Bench, it was incumbent upon the authority to hold full fledged inquiry before cancelling the agreement to run fair price shop agent. This Court, taking note of the aforesaid Full Bench decision regarding full fledged enquiry in Writ-C No. 12737 of 2013 (Ashok Kumar Tiwari Vs. State of U.P. and others) decided on 28.11.2014 has observed as under :-

In view of the decision in Puran Singh (supra) a fulfleged enquiry is necessary before cancelling the agreement and in my view it would require service of the charges, along with material in support of each charge, upon the delinquent. The information about the place and date of enquiry to the delinquent. Recording of statements of persons on whose complaint enquiry has started or in a case of sue motu enquiry, recording of statements of the required persons as per wisdom of the enquiry officer in the presence of the delinquent. Thereafter, each charge has to be discussed and proved separately.

Here in this case, in view of the averments made in paragraph 8 of the counter affidavit, the authorities have drawn the inference of service of suspension order/show cause on the basis of stoppage of supply of schedule commodities to the petitioner's shop and its attachment to another shop. There is difference in between knowledge of suspension order and service of it upon the delinquent for the purposes of inquiry, in my considered opinion, the show cause notice/charge as required has never been served upon the petitioner. The impugned orders treating the service of the suspension order upon the petitioner is perfectly illegal, therefore it cannot be sustained as the same has been passed in breach of principle of natural justice as well as against the own government orders of the State government issued from time to time for taking action against the fair price shop agent regarding cancellation of the agreement to run fair price shop.

In view of foregoing discussions, the impugned orders dated 1.11.2006 passed by the Up Zila Adhikari Faridpur District Bareilly as well as order dated 24.12.2012 passed by the

Commissioner Bareilly Division Bareilly in Appeal No. 194/40/06-07 cannot be sustained in the eye of law and the same are hereby quashed. The writ petition succeeds and is allowed. It will be open to the Sub-Divisional Officer to proceed in accordance with law afresh. The consequences of allowing the writ petition would follow.

Order Date :- 11.12.2014

Pratima