Sadhan Sahkari Samiti And Another vs State Of U.P. Thru Secy. And Others
2017 Latest Caselaw 7208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 25
 

 
Case :- WRIT - C No. - 1387 of 2013
 
Petitioner :- Sadhan Sahkari Samiti And Another
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- Ved Byas Mishra
 
Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,T.M.Khan,Tripurari Lal,Tripurari Pal
 

 
Hon'ble Siddhartha Varma,J.

After a show cause notice was issued on 12.7.2010 by which the licence to run the fair price shop of the petitioner no. 1 was suspended and a reply was asked for, the Secretary of the petitioner no. 1 filed a reply. Thereupon an enquiry was undertaken and the licence to run the fair price shop was cancelled on 20.4.2010. The petitioner no. 1 through the petitioner no. 2 filed an appeal which was also dismissed on 12.12.2012. Aggrieved thereof the instant writ petition has been filed.

The petitioner, which is a society, has in the very beginning submitted that as per the Government order dated 18.12.1980, the licence of a fair price shop which was being run by a co-operative society could not be cancelled and at the most the Assistant Registrar was to be informed if any irregularity was found and action had to be taken against the erring employee. He quoted Clause 8 of the Government order which is being reproduced here as under:-

"lfefr }kjk lapkfyr lLrs xYys dh nqdkuksa esa vfu;ferrk ik;s tkus ij lfefr dk ykblsal fujLr ugha fd;k tk,xk vfirq fujh{k.k vf/kdkjh }kjh vfu;ferrk dh lwpuk ftyk lgk;d fucU/kd dks nh tk,xhA ftyk lgk;d fucU/kd izkIr lwpuk ds vk/kkj ij lfefr ds deZpkjh vFkok izcU/k lfefr] tSlh Hkh fLFkfr gks] ds fo:) rRijrk ls vko';d dk;Zokgh lEikfnr dj ftykf/kdkjh dks voxr djk,axs"

Further submissions of the petitioner are:-

I. The notice as was issued on 12.7.2010 by which the licence of the petitioners' shop was suspended and a show cause notice was issued does not disclose as to whom the notice was issued. Even though the notice had been forwarded to the salesman Dharmendra Pathak and the Secretary Srinath Pandey learned counsel the petitioners states that it could not by any stretch of imagination be a notice which had been specifically sent to them.

II. Apart from the fact that the enquiry was not conducted in the manner as has been provided in the Government Order the respondents have also not adhered to the Government order 23.4.2003 which provides the manner in which a complaint had to be filed. He submits that in the instant case neither was the complaint filed in the manner provided in the Government Order nor was it ever looked into properly.

III. Learned counsel for the petitioner submitted that after the show cause notice was received by the society, the Secretary had submitted his reply. However, thereafter the enquiry as is contemplated in the Government Order dated 29.7.2004 was never under taken. He submits that neither were the requirements as have been enumerated in the Full Bench decision of Puran Singh Vs. State of U.P. and Others reported in 2010 (2) UPLBEC 947, observed nor any law which governs an enquiry were stuck to.

IV. Learned counsel for the petitioner has also submitted that if a certain complainant was summoned by the enquiry officer then the petitioner should have also been allowed to cross examine him and unless he was put to cross examination his statement could not have been believed. He submits that this is what has also been stated in AIR 2013 SC 58 : Ayaaubkhan Noorkhan Pathan V. State of Maharashtra and Ors. Learned counsel read out paragraphs 23, 24 and 25 of this judgement and so they are being reproduced here as under:

"23. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan, AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s Kesoram Cotton Mills Ltd. v. Gangadhar & Ors, AIR 1964 SC 708; New India Assurance Company Ltd . v . Nusli Neville Wadia and Anr., AIR 2008 SC 876; Rachpal Singh & Ors. v. Gurmit Singh & Ors., AIR 2009 SC 2448; Biecco Lawrie & Anr. v. State of West Bengal & Anr. AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha, AIR 2010 SC 3131).

24. In Lkashman Exports Ltd. v. Collector of Central Excise,(2005) 10 SCC 634, this Court, while dealing with a case under the Central Excise Act 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concern, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem.

25. In New India Assurance Company Ltd., v. Nusli Neville Wadia & Anr., AIR 2008 SC 876; this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows :-

"If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right."

(Emphasis added)

In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice."

V. The place and date for the enquiry was also not fixed, depriving the petitioner the opportunity to produce his witnesses.

In reply the learned Standing Counsel has submitted that the instant case was one where no enquiry was required. The customers of the area themselves had complained and it was writ large on the record of the case that the petitioners were not distributing the essential commodities properly and so it had to be concluded that the petitioners were not functioning in the manner they were supposed to and the licence thus had to be cancelled.

I have heard the learned counsel for the petitioner and the learned Standing Counsel. In the first place, the supplementary affidavit by which the petitioner brought on record the Government Order dated 18.12.1980 has not been denied by the learned Standing Counsel and therefore it has to be concluded that the Government Order subsists and has not been superseded by any other Government Order. It very clearly states that a fair price shop which is run by a cooperative society cannot be cancelled and that at the most the employee who was on the wrong could have been punished. Apparently this has not been done. The punishing authority has cancelled the licence of the shop itself. Even though the society is an Agent who distributes the essential commodities of the society but it, as a whole, could not be punished and, as per the Government Oder dated 18.12.1980 only the employee who would be found was on the wrong could be punished.

Further, it is clear from the perusal of the orders that the enquiry as is contemplated in the Government Order dated 29.7.2004 was not undertaken. The decision in Writ Petition No. 35919 of 2017 (Ansar Khan

Vs. State Of U.P. And 2 Others) is to the effect that if an enquiry does not conform to the Government Order dated 29.7.2004 then it could not stand the test of judicial scrutiny. The decision very clearly states that there should be a service of charges on the delinquent and the charges had to be supported by the material on which the authorities relied. Thereafter, the enquiry had to proceed.

Further more, information regarding the place and the time of the enquiry had to be notified to enable the petitioner to place its evidence. The enquiry had to be conducted by the enquiry Officer and it could not have been delegated to any other Officer. In the instant case, in the counter affidavit in paragraph no. 10 it has been stated that the Sub Divisional Officer had directed the Supply Inspector to make the enquiry and thereafter when the report was submitted action was taken. This admittedly could not have been done. An enquiry had to be conducted by the Sub Divisional Officer and that too after involving the petitioner in it. In the absence of a proper enquiry the orders impugned appear to be erroneous.

Therefore, the order dated 20.4.2010 passed by respondent no. 3, the Sub Divisional Officer and the order dated 12.12.2012 passed by respondent no. 2 the Deputy Commissioner Gorakhpur, are set aside.

The writ petition is allowed.

Order Date :- 22.11.2017

praveen.