Allahabad High Court
Sudershan vs State Of U.P. & Others on 1 November, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- WRIT - C No. - 32589 of 2005
Petitioner :- Sudershan
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- I.M. Khan,Sanjeev Kumar Singh,T.M. Khan
Counsel for Respondent :- C.S.C.,L.S. Yadav,P.K. Singh,S.K. Rai
Hon'ble Siddhartha Varma,J.
After a show cause notice was issued to the petitioner on 14.9.2004, the petitioner's shop was suspended and he was required to reply to the show cause. Against the show cause notice and against the suspension the petitioner filed an appeal in which on 3.11.2004 it was provided that the suspension order dated 14.9.2004 was to remain stayed and the record was summoned by the Appellate Court. However, even before the appeal could not be decided, the Sub-Divisional Officer, Hata completed his enquiry and cancelled the licence of the petitioner to run the fair price shop. Aggrieved thereof, the petitioner filed an appeal which was dismissed on 6.4.2005 necessitating the filing of the instant writ petition.
Learned counsel for the petitioner submitted that :
(I) After the order dated 14.9.2004 was passed by which the petitioner's licence to run the fair price shop was suspended and the show cause notice was issued, the petitioner had filed an appeal and in the appeal the order by which the fair price shop was suspended was stayed till 17.11.2004. The record was also summoned and, therefore, no occasion arose for the Sub-Divisional Officer, Hata to pass the order dated 5.11.2004.
(II) The petitioner stated that the show cause notice was issued on the basis of an enquiry which was conducted by the Supply Inspector on 5.9.2004 and in the show cause it was only stated that on the basis of complaints of various villagers it was found that the petitioner was involved in grave irregularities and, therefore, there was no specific show cause/charge to which the petitioner could have replied to.
(III) While the Appellate Court had summoned the record the Sub-Divisional Officer passed an order on 5.11.2004 and strange findings were arrived at therein. He found that 18 Antyodaya card holders were not given essential commodities for the months of June, July, August and September 2004 and that 26 quintals of food grain which was required to be distributed by the Pradhan was not handed over by the petitioner to him. These charges, the petitioner states, were not a part of the charge sheet and the Sub-Divisional Officer, Hata on his own had framed them and had passed the order.
(IV) Before the Appellate Authority various submissions were made about the glaring illegalities in the order dated 5.11.2004. None of them was considered and the appeal was dismissed.
(V) The order dated 8.2.2005 which was passed after the cancellatoin of the licence on 5.11.2004 says that the essential commodities which were alleged to have been misappropriated by the petitioner had to be handed over to one Ram Avtar Sharma, meaning thereby that the averment of the petitioner that the food grain was with him was correct.
(VI) The provisions of the Government Order dated 29.7.2004 had come into operation when the order dated 5.11.2004 was passed and, therefore, it was imperative on the part of the Sub-Divisional Officer, Hata to have conducted the enquiry in accordance with the provisions of the Government Order dated 29.7.2004.
(VII) The Government Order dated 29.7.2004 provides a complete procedure for conducting an enquiry with regard to the cancellation of a fair price shop licence. Therein it has been provided that when there is a charge of non distribution of essential commodities it is incumbent upon the Enquiry Officer to take the affidavits of such card holders who are aggrieved by the functioning of the fair price shop dealer so that the truth could be ascertained regarding the allegations made. The learned counsel further submitted that as per the Government Order dated 29.7.2004, the Disciplinary Authority had to examine the veracity of the complaint by taking recourse to the provisions therein with regard to the method by which evidence was to be led. Still further learned counsel submits that the Licencing Authority/ Sub-Divisional Officer had to provide the petitioner a particular place and time where he could cross-examine the witnesses who had deposed against him. Since the provisions of the Government Order dated 29.7.2004 were not followed at all, the orders he submits deserve to be quashed.
Leanred Standing Counsel however, in reply, has submitted that the two orders are very well reasoned orders and that the appellate order dated 3.11.2004 had only stayed the suspension order dated 14.9.2004 and therefore, the enquiry could have been continued. He further submits that 26 quintals of rice which was required to be distributed amongst the villagers under the Gramin Rojgar Yojana were definitely misappropriated by the petitioner.
Having heard Sri Sanjeev Kumar Singh, learned counsel for the petitioner and the learned Standing Counsel, I am of the view that the impugned orders passed by the respondent nos. 2 and 3 are unsustainable and are to be quashed. When against the suspension and show cause notice dated 14.9.2004 the petitioner had filed an appeal and the Appellate Court on 3.11.2004 had stayed the operation of the order dated 14.9.2004 and summoned the record, then the Sub-Divisional Officer definitely had no authority to pass the order dated 5.11.2004 and it would be presumed that the record was no longer before him.
Further more, I find that provisions of the Government Order dated 29.7.2004 have not been adhered to at all. Further the Sub-Divisional Officer had neither taken the affidavits of the complainants nor he had summoned the complainants to depose against the petitioner and as the complainants were not called by the Sub-Divisional Officer, no occasion arose for the petitioner to cross-examine them.
Under such circumstances, the enquiry and the conclusion arrived at by the Sub-Divisional Officer were vitiated and deserve to be set aside. The Appellate Court of course has only reiterated the contents of the order passed by the Sub-Divisional Officer without adverting to the ground of the appeal.
Under such circumstances, the Appellate Court order dated 6.4.2005 and the order of the Sub-divisional Officer dated 5.11.2004 deserve to be quashed.
In the result the writ petition is allowed.
Order Date :- 1.11.2017
Ashish Pd.
