Chhotey Lal vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 7070 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 6
 

 
Case :- MISC. SINGLE No. - 1618 of 2021
 

 
Petitioner :- Chhotey Lal
 
Respondent :- State Of U.P. Thru. Prin. Secy. Food & Civil Supplies & Ors.
 
Counsel for Petitioner :- Satish Kumar Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) Heard the learned counsel for the petitioner and Shri V. P. Nag, who appears for the State respondents.

(2) The petitioner is aggrieved by the order dated 16.01.2021 passed by the Licensing Authority cancelling the Fair Price Shop License and also the order dated 19.11.2021 passed by the Appellate Authority rejecting his Appeal.

(3) It is the case of the petitioner that he is Fair Price Shop Licensee of Village Panchayat Golok Kodar, Mauza Lodhpurwa, Vikas Khand Reusa, Tehsil Biswan, District Sitapur for the past several years and no complaint has even been made in respect of distribution of essential commodities to the card holders against him. A false and frivolous complaint was made by some card holders that the petitioner had taken thumb impression of the card holders on the E-POS machine but had not distributed the essential commodities to them. On such complaint an inspection was made on 05.05.2020 and on the basis alleged irregularities in distribution the Supply Inspector lodged the First Information Report under Section 3/7 of the Essential Commodities Act on the same day and the petitioner's license was suspended on 07.05.2020. The petitioner filed a Writ Petition challenging the suspension order namely Writ Petition No.13518 (M/S) of 2020. This Court dismissed the writ petition on grounds of statutory remedy being available on 31.08.2020 but observed that the petitioner may file his reply to the Show Cause Notice which shall be considered by the Sub Divisional Officer and appropriate orders be passed in the enquiry so held. It has been submitted that the petitioner filed a detailed reply on 09.09.2020 which was not taken in to consideration. The opposite party no.3 issued a reminder on 15.09.2020 for submission of reply within three days. The petitioner again filed a reply on 22.09.2020 pointing out that he has already submitted a detailed reply on 22.09.2020. Another notice was issued to the petitioner on 03.11.2020 which sought the copy of the distribution register for the month of May, 2020 which the petitioner produced before the Licensing Authority. He also produced copies of distribution register for the month of February, March, and April, 2020 and the certificate issued by the Supervising Authority deputed for monitoring the distribution of foodgrains at his fair price shop. The petitioner's stock register had been kept back by the Supply Inspector, Biswa, District Sitapur, therefore, he could not produce the same. The petitioner requested for copies of statements of villagers recorded during the course of the enquiry but none was supplied to him. The S.D.M. without looking to the reply of the petitioner passed the impugned order cancelling the Fair Price Shop license of the petitioner.

(4) It has been submitted that six villagers were found at the shop of the petitioner during the time of inspection and on 05.05.2020 the statements of such villagers which were recorded alleging that the petitioner had asked them to put their thumb impression on the E-POS machine and had not distributed the foodgrains to them. Such statements were not provided to the petitioner and no proper opportunity of hearing was given in respect of 52 card holders whose thumb impressions were allegedly taken by the petitioner on the E-POS machine but no foodgrains were distributed to them.

(5) The petitioner alleges that the signatures on blank papers were taken by the Inspecting Team and arbitrarily his statement was recorded that he had not distributed the foodgrains to the beneficiary. He has also alleged that the Supply Inspector demanded Rs.30,000/- on 04.05.2020 and when the petitioner refused to give the same on 05.05.2020 the Supply Inspector alongwith others connived to get the spot inspection done on his shop. The Distribution register and the supply register were both in the custody of the Supply Inspector and he made manipulations thereon. The persons deputed to supervise the distribution of foodgrains had given a certificate in favour of the petitioner. It has been submitted that according to the Government Order dated 05.08.2019 there is no provision to prepare the Distribution Register and Supply Register by the licensee and distribution is done only on the basis of thumb impression taken on the E-POS machine.

(6) It has also been submitted that in the Government Order dated 05.08.2019 a provision has been made that the reply of the licensee shall be analyzed by one Officer who is higher in rank than the Enquiry Officer which was not done in his case. It has been further submitted that once his Fair Price Shop license was cancelled as the petitioner had failed to give the description of the stock he had approached this Court for expediting his Appeal and the Court has expedited the matter, being annoyed the Joint Commissioner passed an order on 16.01.2021 rejecting the Appeal.

(7) Learned Standing Counsel on the basis of counter affidavit filed by the Licensing Authority states that the complaints were received from card holders and on the basis of which the inspection was carried out on 05.05.2020. It was found that although there were thumb impressions of card holders on the E-POS machine the foodgrains were not being given to them. At the time of inspection Mr. Dinesh Tiwari, Sub Inspector of Police, Mr. Ramjas Yadav, Head Constable, were present. The petitioner was also present. On inspection of E-POS machine it was found that a total of 229 cards had been entered till 05.05.2020. On 05.05.2020 52 thumb impressions were found. The petitioner himself had admitted that thumb impressions were taken but the ration had not be distributed. The Electronic weighing machine installed in front of the shop was found inoperative. Moreover, on physical verification of the petitioner's shop a total of 109 bags of wheat were found to be sealed and stitched, only 20 kgs. of wheat was found to be lying near the counter. A total quantity of 154.70 kgs. of wheat was found. 79 bags of rice were found stitched and kept in the shop amounting to total quantity being 139.33 kgs. As per the allotment of Antyodaya and eligible households and the distribution shown by the petitioner, wheat and rice stock in the shop of the petitioner was much more. It was apparent that the petitioner was taking thumb impressions of most of the card holders but the foodgrains were not being distributed to them. The Foodgrain were kept back for the purpose of black-marketing. The statements of six card holders present during the inspection were recorded. The F.I.R. was lodged under Section 3/7 of the Essential Commodities Act, the District Magistrate on being presented with the facts directed for suspension of license which order was passed on 07.05.2020. Show Cause Notice was issued to the petitioner twice but the petitioner failed to submit any reply on account of fact that he was in prison. On being released on bail, the petitioner was given copy of the suspension order, Charge-sheet, and all other documents/statements which the Licensing Authority proposed to rely upon in the Enquiry. The office letter dated 05.09.2020 alongwith its annexures is not being denied by the petitioner. The petitioner has submitted his reply on 16.09.2020 and again on 22.09.2020 which was taken into account in passing the order cancelling the Fair Price Shop License of the petitioner. The petitioner filed an Appeal which has also been rejected on 16.11.2020.

(8) Learned counsel for the State-respondents has read out the copy of the Inspection report submitted to the District Magistrate, Sitapur, on 05.05.2020 which mentioned in detail how the spot inspection was carried out and on comparison of the stock available in the shop with the stock that was supposed to be distributed to the card holders it was found that there was a huge discrepancy which meant that the petitioner was compelling the card holders to put their thumb impression on the E-POS Machine but had not distributed the foodgrains to them.

(9) Learned counsel for the State-respondents has also taken this Court through the order of cancellation of the Fair Price Shop impugned in this petition. From a perusal of the order dated 19.11.2020 passed by the Licensing Authority, it is evident that the procedure for conducting inspection has been mentioned in detail including the verification of stock and the amount of wheat and rice having been found in excess of the distribution shown on paper by the petitioner. It is also evident from the order of cancellation that the copies of statements of six card holders were given to him. From the Distribution Register examined by the Licensing Authority it came out that only thumb impressions of 175 card holders were made thereon without indicating the names or Ration Card numbers of the card holders to whom such thumb impressions belonged. It was evident that the Distribution Register was fabricated and prepared only food the Authorities.

(10) This Court has also perused the order dated 16.01.2021 passed by the Appellate Authority where the Appellate Authority has found that the procedure prescribed for conducting enquiry was strictly followed is the spot inspection. The stock of wheat and rice was found much more than would have been available had the distribution of foodgrains being done properly by the petitioner. On there being no procedural impropriety found in the order passed by the Licensing Authority, the Appellate Authority rejected the Appeal.

(11) Having considered the arguments raised by the learned counsel for the petitioner regarding violation of principles of natural justice and the statements of 52 card holders not being recorded whose thumb impressions on E-POS Machine were recorded on 05.05.2020 and discovered during spot inspection, this Court is of the considered opinion that there being no quantity of foodgrains shown to be distributed to these 52 card holders in the Distribution Register and the fact that the stock of wheat and rice in the shop of the petitioner were found to be much more than would have been available had the distribution been done regularly, substantiates the contention of the respondents that the petitioner had committed great irregularities in the distribution of essential commodities warranting cancellation of his license. The statements of 52 card holders were not required. In the State of Haryana and Others Vs. Ratan Singh reported in 1977 (2) SCC 491, a three judge Bench of the Hon'ble Supreme Court was considering an Appeal by the State where the respondent was a conductor of a Bus of the State Transport undertaking. The Bus was stopped and the Inspector of the flying squad discovered that some passengers were not issued tickets though they paid fares. A domestic enquiry was held and the respondent services were terminated. He filed a Suit and the learned Trial Court held that the domestic enquiry was nullity because the ticketless travellers were not examined. At the domestic enquiry, the statements were not recorded by the Inspector as per the Departmental instructions, and the co-conductor's evidence in favour of the respondent showed that the respondent was not guilty. The decree of the Trial Court was confirmed by the Appellate Court and the High Court. Allowing the Appeal, the Supreme Court observed that in a domestic enquiry the strict and sophisticated rules of Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible, though Departmental Authorities and the Administrative Tribunal must be careful in evaluating such materials and should not glibly swallow what, strictly speaking is not relevant under the Evidence Act. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations, and observance of Rules of Natural Justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held to be good. The simple points in all such cases is, was there some evidence or was there no Evidence --not in the sense of the technical rules governing Court proceedings, but in a fair commonsense way as a man of ordinary understanding and worldly wisdom will accept. Sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny by the Court, while absence of any evidence in support of the finding is an error of law apparent on the record and the Court can interfere with the finding. Learned courts below had mis-directed themselves, perhaps, in insisting on the evidence of the ticketless passengers. Also, merely because the statements were not recorded, the order of termination cannot be invalid.

(12) In the case in hand, the petitioner is only a licensee of a fair price shop which license is the result of a contract. A contract wherein the beneficiary is the common man/people of the village who would receive the foodgrains at subsidized rates out of taxpayers money. The license is a privilege arising out of contractual obligations. In such cases the Principles of Natural Justice and strict Rules of Evidence would hardly apply. Only stock verification and verification of Distribution Register could have been done to find out the discrepancy in distribution. Moreover, the statements of six card holders who were present during spot inspection were taken and copies of statements were given to the petitioner. The petitioner in his reply could not refute the allegations made against him to the satisfaction of the Licensing Authority.

(13) With regard to the allegations made by the petitioner that the Supply Inspector had approached him and had demanded Rs.30,000/-, the petitioner has not impleaded the Supply Inspector, in person as a party in the array of the respondents. The allegations of malice in fact cannot be substantiated.

(14) The writ petition is devoid of merits, it is dismissed.

Order Date :- 6.7.2021

PAL