Allahabad High Court
Mohd. Athar vs State Of U.P. And 2 Ors. on 13 October, 2017
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 25
Case :- WRIT - C No. - 48618 of 2017
Petitioner :- Mohd. Athar
Respondent :- State Of U.P. And 2 Ors.
Counsel for Petitioner :- Nipun Singh
Counsel for Respondent :- C.S.C.
Hon'ble Siddhartha Varma,J.
After the First Information Report was lodged on 22.9.2017 by the District Supply Officer against the petitioner, on 23.9.2017, on the very same grounds on which the F.I.R. was lodged the impugned order of suspension was passed.
Learned counsel for the petitioner states that a perusal of the impugned order indicates that while the licence to run the fair price shop had been suspended there was no enquiry contemplated. Only in note 4 of the impugned suspension order by which the main order was forwarded to various individuals, it has been stated that regarding the irregularities which had been given out in the suspension order the petitioner had to submit his written reply, along with such evidence as he wished to rely on, to the District Supply Officer. He contends that this order had been passed by way of a punishment as, after the suspension, the order does not disclose if there was any disciplinary enquiry contemplated. Note 4 of the impugned order makes available a copy of the impugned order to the petitioner and also extends him an opportunity to show cause but no charge has been framed and it does not indicate as to what punishment would be there if the enquiry, if at all was undertaken, went against the petitioner. Under such circumstances he submits that the suspension order itself is a final order as no enquiry in fact is pending.
He further submitted that in AIR 1972 SC 554(P.R. Nayak V. Union of India) & in Smt. Anshu Bharti Vs. State of U.P. and others reported in 2008 (9) ADJ 355 it has been laid down that if in a suspension order no enquiry is contemplated then the suspension order itself becomes a final order of punishment, which could not be passed without affording an opportunity of hearing. Still further, learned counsel has stated that if an order suspending the licence of the petitioner is passed on the basis of an F.I.R. under Section 3/7 of the Essential Commodities Act, 1955, then the order gets vitiated in law. He placed reliance on Rajkumari Singh (Smt.) Vs. State of U.P. & Others, reported in 2011 ALL.C.J. 838.
According to the counsel for the petitioner since the order does not disclose that there was an enquiry contemplated which could have resulted in the cancellation of the shop, the impugned suspension order was a punishment in itself and as the same was passed without affording any opportunity of hearing it would be deemed to be a nullity in the eyes of law.
It has further been submitted that if an enquiry had to take place then the same should have been conducted as per the Clause 2(i) of the Government Order dated 29.7.2004. As the counsel read out the relevant Clause 2(i), the same is being reproduced here as under:-
" mfpr nj dh nqdku dk fuyEcu ek= fdlh O;fDr dh f'kdk;r ds vk/kkj ij ugha fd;k tk;A ;fn fdlh nqdkunkj ds fo:) fdlh lzksr ls f'kdk;r izkIr gksrh gS rks igys mldh izkjfEHkd tkap djk;h tk;A ;fn izkjfEHkd tkap esa nqdkunkj ds fo:) ,slh xEHkhj vfu;ferrka, izFke n`"V;k fl) gks jgh gSas ftuds vk/kkj ij nqdkunkj dh nqdku fujLr gksus dh lEHkkouk gks rHkh nqdku dks fuyfEcr fd;k tk; vkSj lkFk gh lkFk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk; fd mldh nqdku D;ksa u fujLr dj nh tk;A ;fn izkjfEHkd tkap esa ik;k tk; fd vfu;ferrk bruh xEHkhj ugha gS fd nqdku ds fujLrhdj.k dh lEHkkouk gks rks dsoy dkj.k crkvks uksfVl tkjh fd;k tk;A fuyEcu vkns'[email protected] crkvks uksfVl ,d ^Lihfdax vkMZj^ gksuk pkfg, rFkk mlesa izkjfEHkd tkap esa ik;h x;h mu lHkh vfu;ferrkvksa dk fooj.k gksuk pkfg, ftudk mRrj nqdkunkj ls visf{kr gSA"
Learned Standing Counsel relying on the note 4 of the impugned order submitted that an enquiry was definitely pending.
Having gone through the order, I am of the view that the impugned order deserves to be quashed. In the first place, it was not in conformity with the Government Order dated 29.7.2004, in as much as the order of suspension does not indicate that in the preliminary enquiry, prima facie, it had been established that the complaint against the petitioner was serious enough to end in the cancellation of his agreement and second the order does not indicate that there was any enquiry pending which would result in the cancellation of the agreement of the petitioner to run the fair price shop. Note 4 which has been appended to the order only mentions that the petitioner was required to give some reply with regard to certain irregularities but it cannot be correlated to any portion of the impugned order. Just as an explanation can be understood with its reference to the parent section in any enactment, a Note appended to an order can be understood in reference to the context of the main order. A Note appended to an order cannot become the main order itself. This is what has been laid down in AIR 1985 SC 582 (S. Sundaram Pillai, etc Vs. R. Pattabiraman) and is a very basic principle of law. Thus, a Note to the order only supplements the main order. It cannot by itself become the main order. Oftentimes the person to whom the order is sent does not even look at the Note. One cannot make out from the Note as to what were the charges and what would happen if it was established that the charges were correct.
The order dated 23.9.2017, thus, is not sustainable and, therefore, deserves to be quashed. The writ petition is allowed.
However, it would be open for the respondents to proceed in accordance with law.
Order Date :- 13.10.2017
praveen.
