Dayanand Yadav vs State Of U.P. Thru Secy. And Others
2018 Latest Caselaw 3997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Reserved on 08.10.2018
 
Delivered on 27.11.2018
 

 

 
Case :- WRIT - C No. - 56458 of 2011
 

 
Petitioner :- Dayanand Yadav
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- A.K. Singh,Sunil Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saral Srivastava,J.

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. The petitioner in the instant writ petition has impugned the order dated 21.07.2010 passed by the respondent no.3 Sub Divisional Magistrate, Jakhania, District Ghazipur cancelling the license of fair price shop of petitioner and the order dated 25.03.2011 by the Deputy Commissioner, Varanasi Division, Varanasi respondent no.2 rejecting the appeal no.135 of 2010 of the petitioner filed against the order dated 25.03.2011.

3. The brief facts giving rise to the present writ petition are that the petitioner claims to be appointed as fair price shop agent of Gram Panchayat Babura, Tehsil Jakhania, District Ghazipur in the year 1999. On the complaint in respect of irregularities committed by the petitioner in distributing the essential commodities, the Supply Inspector was directed by respondent no.3 to hold an enquiry and submit report. The Supply Inspector submitted his report on 20.07.2007, in which, he has recorded that the petitioner was not making fair distribution of essential commodities. He was overcharging and distributing lesser quantity of essential commodities than the prescribed quantity. On the basis of the report dated 20.07.2007, the respondent no.3 suspended the agreement of the petitioner for the shop in question by order dated 31.07.2007 and directed the petitioner to submit reply to the charges of irregularities levelled against him in the order dated 31.07.2007.

4. The petitioner, thereafter submitted his reply on 17.08.2007 denying the charges levelled against him. It appears that after the submission of the reply, the respondent no.3 once again directed the Supply Inspector to enquire into the complaint against the petitioner and submit report. The Supply Inspector again submitted another report on 10.09.2007.

5. Thereafter, the respondent no.3 by order dated 01.11.2007 cancelled the agreement of license of fair price shop of the petitioner. The petitioner, thereafter, preferred statutory appeal before the respondent no.2 Deputy Commissioner, Varanasi Division, Varanasi, who by order dated 13.02.2009 dismissed the appeal of the petitioner.

6. The petitioner being aggrieved by the order dated 13.02.2009 of the respondent no.2 and the order dated 01.11.2007 of respondent no.3 preferred Writ Petition No.22728 of 2009 which was allowed by this Court vide order dated 29.04.2009. The relevant portion of the order dated 29.04.2009 is reproduced herein below:-

"In view of the stand so taken and having regard to the facts that the second enquiry report dated 10.09.2007 is stated to have not been served upon the writ petitioner I am of the considered opinion that the order impugned passed by the commissioner dated 13 February 2009, which specifically refer to the said report dated 10.09.2007 for the purpose of arriving at a conclusion that the charges as alleged against the writ petitioner, stood proved without examining that said report was served upon the petitioner or not cannot be legally sustained, therefore the order of commissioner dated 13 February 2009 is hereby quashed.

Let the Deputy Commissioner re examine the matter as to whether the second enquiry report dated 10.09.2009 was served upon the writ petitioner and he was afforded opportunity to meet the allegations made therein or not.

The aforesaid exercise may be completed by the Deputy Commissioner within four weeks from the date of certified copy of the order is filed before him. After examination of the aforesaid issue, the Deputy Commissioner shall proceed to pass such further orders, as may be necessary.

With the aforesaid observations, writ petition is disposed off."

7. In consequence to the judgement of this Court dated 29.04.2007, the respondent no.2 passed the order dated 11.09.2009 setting aside the order of cancellation of license dated 01.11.2007 passed by the respondent no.3 and further directed the respondent no.3 to pass order after giving opportunity of hearing to the petitioner.

8. It appears that, thereafter, show cause notices were issued to the petitioner by the respondent no.3 on 29.03.2010 and 05.04.2010. The petitioner submitted reply on 08.04.2010 wherein he denied the charges levelled against him. The petitioner also submitted sale register, stock register of food grains and sugar for the month of July, 2007. The petitioner also filed photocopies of BPL/Antodaya Ration Cards to demonstrate that he had distributed food-grains, sugar and kerosene oil to the ration card holders and some of the ration cards contained endorsement by the Supply Inspector certifying the distribution of essential commodities by the petitioner. The petitioner further filed an application containing the signatures of 23 villagers wherein they have stated that they are getting essential commodities.

9. It appears that the Gram Pradhan of village submitted an application on 08.04.2010 before the respondent no.3 seeking permission to file objection in proceeding of cancellation of license of petitioner. Thereafter, the Gram Pradhan submitted objection on 13.04.2010 wherein he requested that license of the petitioner should not be restored. In support of the objection, he filed application of 138 card holders who supported the version of Gram Pradhan. He also filed the affidavits of some of the card holders wherein they have stated that they have not signed the application filed by the petitioner containing the statement that they are getting food-grains.

10. It further transpires that the respondent no.3 again issued a show cause notice dated 07.07.2010 to the petitioner as well as to Gram Pradhan granting time up to 12.07.2010 to submit any additional material if they so desire. It appears from the record that Gram Pradhan did not appear on 12.07.2010 and, therefore, the respondent no.3 fixed 16.07.2010 permitting the Gram Pradhan to file any additional material. On 16.07.2010, husband of Gram Pradhan Ravindra Nath Yadav appeared and submitted application giving details of essential commodities which were distributed in lesser quantity than the prescribed quantity and cardholders were overcharged. Alongwith said reply, the Gram Pradhan also filed the affidavits of several card-holders who had stated that the license of petitioner should not be restored.

11. The respondent no.3 passed an order dated 21.07.2010 cancelling the license of the petitioner on the ground that several villagers have filed affidavits with prayer that the license of the petitioner should not be restored. Second ground on which the cancellation order was passed by the respondent no.3 is that in enquiry report dated 10.09.2007, Supply Inspector has recorded a specific finding that the petitioner has been overcharging for distribution of essential commodities from the BPL/Antodaya card-holders. On these two grounds, the licensing authority cancelled the license of the petitioner.

12. Feeling aggrieved by the order of the licensing authority, the respondent no.3 preferred statutory appeal no.135 of 2010 which was also dismissed by the respondent no.2 by order dated 25.03.2011 by recording a finding that eight BPL/Antodaya Card-holders filed affidavits that the petitioner had obtained and procured their ration card by misleading them and if it has been filed by the petitioner in support of his case, it should be ignored.

13. It is pleaded by the petitioner that the respondent no.3 has not supplied copy of enquiry report dated 10.09.2007 and objection filed by the Gram Pradhan dated 13.04.2010 to the petitioner. Necessary pleadings in this regard has been made by the petitioner in paragraphs 18 and 31 of the writ petition which are reproduced herein-below:-

"18. That the respondent no.3 called another report in respect of the charges levelled against the petitioner but the Supply Inspector did not submit his report dated 10.09.07 in respect of the charges levelled against the petitioner. Copy of this report was not supplied to the petitioner.

31. That copy of the objection filed by the Gram Pradhan dated 13.04.10 was not supplied to the petitioner and no opportunity was afforded to him to rebut the same. The Village Pradhan was highly prejudiced from the petitioner and as such he was trying to get the petitioner's fair price shop cancelled by hook or crook on account of election rivalry in the election of Gram Pradhan. A true copy of the objection dated 13.04.10 is being filed herewith and marked as Annexure no.6 to this writ petition."

14. The respondents filed counter affidavit stating therein that the order impugned in the writ petition are correct and based on appreciation of evidence on record. It is further averred in the counter affidavit that reasonable opportunity of hearing was afforded to the petitioner, and orders impugned in the writ petition have been passed passed following the principles of natural justice. The respondents have replied paragraphs 18 and 31 of the writ petition extracted above in paragraphs 15 and 22 of the counter affidavit which are extracted herein-below:-

"15. That the contents of paragraph nos.18 and 19 of the writ petition as stated are denied, in view of the replies already been given in preceding paragraphs of this counter affidavit.

22. That the contents of paragraph nos. 30 and 31 of the writ petition as stated are denied, in view of the replies already been given in preceding paragraphs of this counter affidavit."

15. Learned counsel for the petitioner has submitted that the order impugned in the writ petition are illegal and not sustainable in law inasmuch as this Court vide order dated 29.04.2009 directed the respondent no.3 to supply copy of the second enquiry report dated 10.09.2007, and despite direction of this Court, said enquiry report was not supplied to the petitioner. He submits that necessary assertion in respect of non-supply of copy of enquiry report dated 10.09.2007 has been made in paragraph 18 of the writ petition and the respondents have not denied the said fact in the counter affidavit.

16. He further submits that the objections dated 13.04.2010 and 16.07.2010 of the Gram Pradhan referred to in the order of the licensing authority and the material filed by the Gram Pradhan in support of those objections were not supplied to the petitioner. He submits that the petitioner has specifically averred in paragraph 37 of the writ petition that the objections of the Gram Pradhan and the material in support of those objections filed by the Gram Pradhan was not supplied to the petitioner and as such, the order of cancellation of license is in violation of principles of natural justice. He further submits that there is no averment in the counter affidavit that the copy of objection dated 16.07.2010 of Gram Pradhan was supplied to the petitioner and as such, the contention of the petitioner with regard to non-supply of objection of Gram Pradhan dated 16.07.2010 is fortified from the facts on record.

17. The further Submission is that the plea of violation of principles of natural justice and non-supply of evidence and documents filed by Gram Pradhan was raised before the appellate authority which is evident from ground no.8 of the appeal but the appellate authority has failed to record any finding on the aforesaid issue and hence, the order of the respondent no.2 dismissing the appeal is also not sustainable in law inasmuch as same has been passed by the appellate authority without application of mind.

18. Per contra, learned Standing Counsel submits that the finding has been recorded by the licensing authority on the basis of the material on record that the petitioner was guilty of committing the irregularities in distribution of essential commodities. He submits that order of cancellation of license has been passed by respondent no.3 after following principles of natural justice. He submits that the findings recorded by the respondent nos.3 and 2 in the impugned order are based on proper appreciation of evidence on record and being finding of fact are not liable to be interfered by this Court in exercise of power under Article 226 of the Constitution of India.

19. I have considered the rival submission of the parties and perused the record.

20. Before dealing with the rival submission of the parties, it would be useful to have a glance at the provisions prescribed in Government Order dated 29.07.2004 for conducting enquiry in case of cancellation of license of fair price shop agent. Paragraphs 4 and 5 of the aforesaid Government Order are relevant which are extracted herein-below:-

''4& fuyfEcr dh x;h nqdkuksa ds fo:} tkWp 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 tkWp 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 tkWp esa lg;ksx ugh fn;k tk jgk gks vkSj tkWp 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& tkWp 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 tkWp esa lg;ksx ugh 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 ugh fd;k vkSj tkWp es lg;ksx ugh fd;kA''

21. Paragraphs 4 and 5 of the aforesaid Government Order provides that the fair price shop agent would be given reasonable opportunity of hearing by the enquiry officer. It casts a duty upon the competent authority to pass speaking order. It further makes obligatory upon the licensing authority to record a finding in the order that reasonable opportunity of hearing has been afforded to the concerned fair price shop agent and he has been heard by the competent authority before passing the order. Further, the competent authority is obliged to record in the order that reasonable opportunity of hearing was afforded to the concerned fair price shop agent, and that the last notice was given to the concerned fair price shop agent seeking explanation and the concerned fair price shop agent has deliberately not cooperated with the enquiry proceedings.

22. Thus, the reading of paragraphs 4 & 5 of the Government Order makes extracted above it abundantly clear that the licensing authority is required to follow the principles of natural justice in conducting the enquiry. This implies that if the concerned fair price shop agent was not afforded opportunity of hearing or necessary finding in respect of giving reasonable opportunity of hearing as required in paragraph 5 of the aforesaid Government Order has not been given by the licensing authority, the order of cancellation is not sustainable.

23. This Court in the case of Smt. Santara Devi Vs. State of U.P. and others 2016 (2) ADJ 70 following the judgement in the case of Puran Singh Vs. State of U.P. and others 2010 (3) ADJ 659 (FB) held that full-fledged enquiry is necessary before cancelling the agreement and it would require service of charge-sheet alongwith material in support of each charge, the information about the place and date of enquiry, the statement of person on whose complaint, enquiry was started or in case of suo motu enquiry, the statement of persons appearing before the enquiry officer. Paragraphs 7 & 8 of the judgement in Smt. Santara Devi (supra) are extracted herein-below:-

"7. 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. It is obligatory upon the authorities to hold a fulfledged enquiry against the fair price shop dealer, after serving of the charge sheet with regard to the date and place where the hearing will took place and to give an opportunity of hearing. This is in addition to the show cause notice issued for the purposes of suspension of the license of the fair price shop. This procedure does not appear to have been followed by the respondents in passing the impugned order. It does not appear from the record that any fulfledged enquiry was held as contemplated by the Full Bench decision on the basis of paragraphs 4 and 5 of the Government Order dated 29.07.2004. The petitioner was not even given any charge-sheet on the basis of any such inquiry report to enable him to submit his explanation or response. The petitioner was also not given information of any date of hearing in the matter."

24. In another case in Writ - C No.14206 of 2014 (Pati Ram Vs. State of U.P. and others), this Court has held that if the decision is based on the statement of the complainants/cardholders, then the copies of the statements have to be provided to the fair price shop agent, so that, he may be able to cross-examine the persons whose statement has been made basis for cancellation of license.

25. Thus, in the light of the Government Order dated 29.07.2004 and the aforesaid judgement of this Court, argument of learned counsel for respective parties shall be dealt with in the present case.

26. It is the case of the petitioner that despite direction of this Court in Writ Petition No.22728 of 2009 (Dayaram Yadav Vs. State of U.P.) to supply the report dated 10.09.2007, the competent authorities have failed to supply the same. Further fact which is noticeable in the present case is that the order of the licensing authority has considered the objections filed by Gram Pradhan on 13.04.2010 and 16.07.2010 but these objections and the statements of card-holders filed with these objections have not been provided to the petitioner. The petitioner in this regard has made necessary averments in paragraphs 18 & 31 of the writ petition which have already been extracted herein-above. The reply in respect of the aforesaid paragraphs of the writ petition have also been extracted above and a glance of the same clearly reveals that the respondents have not denied the fact that the copy of the enquiry report dated 10.09.2007 was not supplied to the petitioner and the objections and the statements of card-holders filed by Gram Pradhan in support of said objections were not supplied to the petitioner.

27. The licensing authority has not recorded any finding as to whether the copy of enquiry report dated 10.09.2007 was supplied to the petitioner and further, the copy of the objections of Gram Pradhan dated 13.04.2010 and 16.07.2010 alongwith material were supplied to the petitioner. The order of licensing authority indicates that last objection was filed by Gram Pradhan on 16.07.2010 and order of cancellation was passed after five days i.e. on 21.07.2010. This fact itself establishes that the copy of the objection dated 16.07.2010 submitted by the Gram Pradhan in support of said affidavit was not supplied to the petitioner as the order of cancellation has been passed after five days from the date of filing of objection by Gram Pradhan on 16.07.2010.

28. If the analysis of the facts in the case in hand is made on the principles laid down by this Court in the judgements of this Court in Smt. Santara Devi (supra) and Pati Ram (supra), the only conclusion that can be arrived at in the present case is that the enquiry was not conducted in accordance with law and that the entire proceedings of cancellation of license was held in violation of principles of natural justice. It is further noticeable that the appellate authority has also failed to consider the fact as to whether the enquiry has been held properly and as per procedure prescribed in paragraphs 4 and 5 of the aforesaid Government Order dated 29.07.2004 and on the touchstone of the principles laid down in the judgement of this Court in the cases of Smt. Santara Devi and Pati Ram (supra).

29. Thus, for the reasons given above, the order dated 21.07.2010 passed by Sub Divisional Magistrate, Jhakhania, District Ghazipur and the order dated 25.03.2011 passed by the Deputy Commissioner, Varanasi Division, Varanasi are not sustainable in law and are accordingly set aside.

30. Normally, this Court would have remanded the matter to the licensing authority to decide afresh. But in the instant case, the petitioner in earlier round of litigation had succeeded. After first round of litigation, the licensing authority again initiated the enquriy proceedings against the petitioner in pursuance to the judgement of this Court dated 29.04.2009, but the licensing authority completely in derogation to the judgement of this Court dated 29.04.2009 and completely ignoring paragraphs 4 and 5 of Government Order dated 29.07.2004 and the principles enunciated by this Court in conducting the enquiry has conducted the enquiry and passed the cancellation order.

31. Thus, in the facts of the present case, this Court finds that this is not a fit case where the matter should again be remanded to the licensing authority to pass a fresh order. In this view of the fact, the writ petition is allowed with the direction to the licensing authority respondent no.3 to restore the license of the petitioner forthwith. There shall be no order as to costs.

Order Date :-27.11.2018

S.Sharma