Tula Ram vs State Of U.P. Thru Secy. And 2 ...
2017 Latest Caselaw 5634 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR
 
Court No. - 25
 
Case :- WRIT - C No. - 3810 of 2014
 
Petitioner :- Tula Ram
 
Respondent :- State Of U.P. Thru Secy. And 2 Others
 
Counsel for Petitioner :- Suresh Chandra Verma,Devesh Kumar Verma,Shashi Kumar Mishra,Vijay Singh Sengar
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Siddhartha Varma,J.

On 8.6.2012, a show cause notice was issued, to which, the petitioner replied on 26.6.2012. The licence to run the fair price shop of the petitioner was cancelled by an order dated 27.8.2012, against which, he filed an appeal, which was also dismissed on 26.10.2013. Aggrieved thereof, he has filed the instant writ petition.

Learned counsel for the petitioner made the following submissions:

(1) The Government Order dated 29.7.2004 lays down the procedure by which an enquiry had to be conducted for the cancellation of the agreement/licence of a fair price shop. He read out the relevant provisions of the Government Order, which is being reproduced hereunder:-

2 mDr i`"BHkwfe esa eq>s ;g dgus dk funs'k gqvk gS fd xzkeh.k ,oa 'kgjh {ks=ksa dh mfpr nj dh nqdkuksa ds fuyEcu @fujLrhdj.k ds lEcU/k esa fuEu izfdz;k dk ikyu fd;k tk,A

(i) 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;ferrk,a izFke n`"V;k fl) gks jgh gksa 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] crkvksa 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 gksA

(ii) ¼d½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @vU; izkf/kd`r O;fDr;ksa }kjk mfpr nj dh nqdku ds vkdfLed fujh{k.k ds nkSjku ;fn ik;k tkrk gS fd nqdkunkj }kjk dksbZ xEHkhj vfu;ferrk dh x;h gS rks Hkh nqdku dks fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, fuyfEcr fd;k tk ldrk gSA

¼[k½ [kk| foHkkx ds vf/kdkfj;ksa @ ftyk iz'kklu ds vf/kdkfj;ksa @ vU; izkf/kd`r O;fDr;ksa }kjk ;fn nqdkunkj dksbZ vfu;fer dk;Z] forj.k esa xM+cM+h ;k vuqlwfpr oLrqvksa dh dkykcktkjh djrs gq, idM+k tkrk rks Hkh fu;qfDr vf/kdkjh }kjk vius foosd dk iz;ksx djrs gq, nqdku dks fuyfEcr fd;k tk ldrk gSA

mDr ifjfLFkfr;ksa esa nqdku ds fuyEcu dh fLFkfr esa Hkh Lihfdax vkMZj" ls fuyEcu vkns'k tkjh fd;k tk;sxk ftlesa lHkh vfu;ferrkvksa dk mYys[k gksxk rFkk nqdkunkj dks dkj.k crkvks uksfVl tkjh fd;k tk;sxk fd D;ksa u mldh nqdku fujLr dj nh tk;A

4- fuyfEcr dh x;h nqdkuksa ds fo:) tkap dh dk;Zokgh vf/kdre ,d ekg esa vfuok;Z :i ls iwjh dh tk;sxh rFkk tkap esa lEcfU/kr nqdkunkj dks lquokbZ dk iwjk ekSdk fn;k tk;sxkA lEcfU/kr nqdkunkj dk ;g nkf;Ro gksxk fd og tkap esa viuk iwjk lg;ksx ns rkfd tkap dk dk;Z tYnh ls tYnh iwjk fd;k tk lds rFkk fu;qfDr izkf/kdkjh }kjk izdj.k esa xq.k&nks"k ds vk/kkj ij vfUre fu.kZ; fy;k tk ldsA ;fn nqdkunkj }kjk tkap esa lg;ksx ugha fn;k tk jgk gks vkSj tkap esa foyEc djus dk iz;kl fd;k tk jgk gks rks nqdkunkj dks bl vk'k; dk Hkh uksfVl tkjh fd;k tk;sxk vkSj viuk i{k j[kus dk vfUre volj iznku fd;k tk;sxkA

5- tkap dh dk;Zokgh vf/kdre ,d ekg esa iw.kZ djds fu;qfDr izkf/kdkjh }kjk izdj.k esa vfUre fu.kZ; fy;k tk;sxk vkSj xq.k nks"k ds vk/kkj ij ,d Lihfdax vkMZj" tkjh fd;k tk;sxkA bl vkns'k esa ;g Li"V mYys[k gksuk pkfg, fd lEcfU/kr nqdkunkj dks lquokbZ dk volj fn;k x;k vkSj mls lquk x;kA ;fn nqdkunkj us tkap esa lg;ksx ugha fd;k gks vkSj lquokbZ ds volj dk tkucw>dj mi;ksx u fd;k gks rks vfUre vkns'k esa bl ckr dk Hkh iwjk mYys[k gksuk pkfg, fd nqdkunkj dks volj iznku fd;k x;k rFkk vfUre uksfVl fn;k x;k ijUrq mlus tkucw> dj volj dk mi;ksx ugha fd;k vkSj tkap esa lg;ksx ugha fd;kA

(ii) The show cause notice dated 8.6.2012 does not indicate the punishment, which the petitioner would be getting after he submitted the reply to the show cause notice.

(iii) After the petitioner submitted his reply, there was no date fixed for the enquiry and also no place of enquiry was fixed, where he could have produced his witnesses and could have placed the documentary evidence before the enquiry officer, who was enquiring into the matter. In the Full Bench decision of Puran Singh vs. State of U.P. and others; reported in 2010 (3) ADJ 659, it has been held that a full-fledged enquiry had to take place in pursuance of the show cause notice for cancellation. Learned counsel for the petitioner has read out paragraph No. 35 of the Full Bench judgment (supra), which is being reproduced hereunder:-

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 as the order of suspension is concerned, Government Order does 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."

Following the Full Bench decision, learned counsel for the petitioner submits that various other judgments have been passed, wherein the importance of the Government Order had been highlighted. From the judgment of Santara Devi Vs. State of U.P. and Ors; reported in 2016 (2) ADJ 70 , the petitioner read out paragraphs No. 6, 8 and 9 and the same are being reproduced hereunder:

"6. In other words it means that an independent inquiry before passing an order of cancellation of license to run a fair price shop is mandatory and a show cause notice simplicitor is not sufficient to conform to the principles of natural justice.

8. The supply of the copy of the inquiry report if any is a sine qua non in furtherance of the principles of natural justice in cases where such an inquiry report forms the basis of the impugned order. Thus, the non supply of the same also vitiates the order.

9. The supply of the copy of the inquiry report if any is a sine qua non in furtherance of the principles of natural justice in cases where such an inquiry report forms the basis of the impugned order. Thus, the non supply of the same also vitiates the order."

(iv) The preliminary enquiry was initiated on the complaints of certain Antayodaya Card holders, namely, Udaiveer and Munna Lal and BPL Card holders Ram Lakhan, Smt. Triveni Devi and Shri Hawaldaar and without having an objective satisfaction that the enquiry would result in the cancellation of the shop, the petitioner's agreement was suspended and a vague show cause notice was issued. The complaints were also not made in the manner it has been prescribed in the Government Order dated 23.4.2003.

(v) The enquiry, which took place only on the reply being submitted by the petitioner did not take into account the various affidavits, which the petitioner had filed, which included the affidavits of the complainants also. The petitioner had also produced the stock register and the distribution register which indicated that he had been selling the essential commodities at the proper rate and therefore it could not be said that the petitioner had been selling the essential commodities at prices which were higher than the rate fixed

(vi) Perusal of the order also indicates that it is only a subjective satisfaction of the cancelling authority, which had resulted in the order of cancellation.

(vii) The appellate authority also simply dittoed the findings of the punishing authority and had dismissed the appeal.

(ix) Further, the learned counsel for the petitioner stated that all findings of the preliminary enquiry which were arrived at behind the back of the petitioner could not be used against him. In this connection, he relied upon a judgment reported in 2010 (6) ADJ page 339, Abu Baker vs. State of U.P. and others.

Learned Standing Counsel submits that the evidence as was there before the cancelling authority was sufficient to cancel the agreement/licence to run the fair price shop. He submits that the findings as were arrived at in the preliminary enquiry were sufficient to cancel the agreement.

I have heard learned counsel for the petitioner, learned counsel for the respondents and learned Standing Counsel and perused the order dated 27.8.2012 by which the agreement to run the fair price shop dated 27.8.2012 was cancelled and the order dated 26.10.2013 which was passed in appeal.

A bare persual of the orders shows that before passing the impugned order, enquiry as has been contemplated in the Government Order dated 29.7.2004 was not undertaken and the mandates of the Full Bench have also not been followed. The findings of the preliminary enquiry, which are always conducted without the participation of the delinquent, could not have been used. Furthermore, the show cause notice itself appears to be defective, as not only is it vague, but it also does not indicate as to what punishment the delinquent was to be given upon the completion of the enquiry. The enquiry officer, as also the punishing authority, have in a most slip shod manner conducted the enquiry and have concluded that the petitioner was not distributing the essential commodities properly. The appellate authority dittoed the finding of the cancelling authority.

Under such circumstances, the writ petition is allowed.

The orders dated 27.8.2012 and 26.10.2013 passed by respondents No. 3 and 2 respectively are quashed.

Order Date :- 24.10.2017

Sumaira