Ram Kali vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 11287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 6
 

 
Case :- MISC. SINGLE No. - 13533 of 2021
 

 
Petitioner :- Ram Kali
 
Respondent :- State Of U.P. Thru. Prin. Secy. Food & Civil Supplies & Ors.
 
Counsel for Petitioner :- Smriti
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble J.J. Munir,J.

This writ petition is directed against an order dated 19.03.2018 passed by the Sub-Divisional Officer, Mitauli, District - Lakhimpur Kheri, cancelling the petitioner's license and contract for the fair price shop at Village - Ashiq Nagar, Block and Tehsil - Mitauli, District - Lakhimpur Kheri and also forfeiting security of Rs. 5,000/-. Also under challenge is the order of the Additional Commissioner (Food), Lucknow Division, Lucknow passed in Appeal No. 3561 of 2018, affirming the order last mentioned and dismissing the petitioner's appeal.

2. A counter affidavit has been filed on behalf of respondent nos.1 to 4.

3. Admit.

4. Heard forthwith.

5. The petitioner is the fair price shop dealer at Village - Ashiq Nagar Development Block, Tehsil - Mitauli, District - Lakhimpur Kheri. According to the petitioner, she had been doing her business of distributing essential commodities eventlessly. She was served with a charge-sheet dated 25.01.2018 by the Sub-Divisional Magistrate, Mitauli, District - Lakhimpur Kheri, requiring her to submit her reply. The petitioner submitted her reply on 24.02.2018, rebutting the charges and detailing her defence. The petitioner's fair price shop license and contract were ordered to be cancelled by the Sub-Divisional Officer vide order dated 19.03.2018. The order was challenged in appeal under Section 13(3) of the U.P. Essential Commodities (Sales and Distribution) Control Order, 20161 before the Joint Commissioner (Food), Lucknow. The appeal aforesaid was registered on the file of the Appellate Authority as Case No. 03561 of 2018. The Appellate Authority, by his order dated 09.12.2020, has dismissed the petitioner's appeal and affirmed the order of the Authority of first instance.

6. Aggrieved, the present writ petition has been instituted.

7. Heard Ms. Smriti, learned Counsel for the petitioner and Mr. Ved Prakash Verma, learned Standing Counsel appearing for the respondents.

8. A perusal of the impugned order passed by the Authority of first instance would show that proceedings against the petitioner were drawn allegedly on the basis of a complaint by thirty-three cardholders, the summary whereof is set out in the order impugned. The proceedings giving rise to the impugned order and charge-sheet that followed was said to be drawn up on the basis of the complaint of these cardholders and their statements recorded by the Regional Supply Inspector concerned. A summary of the complaints indicated to have been made by the cardholders, attached to the petitioner's shop, is about charging extra for food grains or providing lesser quantity of kerosene than the cardholders' entitlement. There are facts and figures about the short supply and the overcharge relating to thirty-three cardholders, shown in the tabulated summary. On the basis of these statements of the various cardholders, the authority has culled out four charges against the petitioner (translated from Hindi to English) :

1. The dealer provided the antyodaya cardholders with food supplies in quantity less than their entitlement and at a higher price.

2. The dealer provided kerosene to the antyodaya cardholders in quantity less than their entitlement and overcharging them for it.

3. The dealer, while distributing food grains to grehasti cardholders, overcharges them and to some of them, for months together, no supply is made.

4. The dealer, while distributing kerosene, provides it in short measure and overcharges for it.

9. A perusal of the impugned order shows that it is recorded by the Sub-Divisional Officer, that after service of the charge-sheet dated 25.01.2018, the dealer was required to submit his reply, together with appropriate evidence in his defence, within a week. The charge-sheet was served upon the dealer on 29.01.2018, to which a reply was submitted on 24.02.2018. The Sub-Divisional Officer has then proceeded to record a summary of the petitioner's defence to the charges. A reference to copies of the stock register vis-à-vis the relevant charges, also finds mention. The Sub-Divisional Officer has proceeded to hold that upon perusal of a photostat copy of the stock register, it is found that at Serial Nos. 1-29, the twenty-nine pages that have been annexed, do not show the month to which these relate, nor the date. It is also remarked that the register does not also indicate verification of the same by any competent authority. It is remarked that to these inaccuracies in the photostat copy of the stock register annexed "The explanation furnished by the dealer cannot be regarded as entirely satisfactory, nor the stock register filed in support of the explanation admissible in evidence." It is also said in the order impugned that the petitioner, in support of his explanation, has not offered any such dependable evidence, on the basis of which, his explanation can be accepted or that on its basis, he may be held innocent. It is then abruptly concluded that in the aforesaid manner, all the four charges levelled against the petitioner stand fully proved, rendering his contract/license liable to be cancelled. The Appellate Authority has largely refused to interfere with the order of cancellation on the ground that the petitioner has not produced any firm evidence in support of his defense.

10. Learned Counsel for the petitioner has argued that the submissions, on the basis of which he has been charged, are not those of the cardholders, but merely foisted allegations by the Supply Inspector. It is also urged that the authorities below have failed to accept the petitioner's defense on the ground that twenty-nine pages of the distribution register did not bear the date, month or the signatures of the verifying authority. It is also argued that the authorities below have failed to take into consideration the distribution certificate issued by the Gram Panchayat for the month of January, 2018, which is a duly signed document by the Block Development Officer. Learned Counsel submits that ignoring the said certificate vitiates the impugned order, on account of non-consideration of material evidence. It is particularly pointed out that the Sub-Divisional Officer failed to consider Forms 'A' and 'B' filed by the petitioner, with his reply dated 14.02.2018, which are certificates issued by the Prescribed Authority, that is the Block Development Officer. These certificates have material bearing on the charge about the distribution of essential commodities. Both the orders passed by the authorities below, according to the learned Counsel for the petitioner, suffer from non application of mind and do not constitute a reasonably informed determination by quasi-judicial authorities, whose decision carries adverse civil consequences, affecting a citizen's livelihood.

11. Mr. Ved Prakash Verma, learned Standing Counsel, on the other hand, argues that all relevant evidence has been taken into consideration by the authorities below to record concurrent findings of fact that are not open to question in the present petition under Article 226 of the Constitution.

12. Proceedings for cancellation on a charge of short distribution or short measurement is a stigmatic order, that visits a fair price shop dealer with adverse civil consequences. It impacts his right to livelihood. This Court cannot fail to notice that both the authorities below have proceeded on a presumption about proof of the charges, just because the Supply Inspector has brought them. Both the authorities below seem to believe that whatever the State say against the license holder is to be presumed true, unless rebutted by cogent evidence adduced by the license holder.

13. A reading of the Sub-Divisional Officer's order cannot but lead one to the conclusion that he has identified himself with the State and their case, rather than to act as an impartial arbiter, before whom charges have been laid by the State. Upon the Supply Inspector representing the State, bringing charges of short measurement or short supply of essential commodities, fairness of procedure demands that the one who alleges ought to be saddled with the burden of proof. The State ought to have been required to adduce evidence aliunde in support of the allegations that are carried in charge-sheet and culled out into four charges. For instance, if the Supply Inspector has made imputations in his report that the petitioner short supplied kerosene to certain cardholders or food grains to others, whose names he has mentioned in his report, he ought to have called them to testify at the inquiry, at least some of those whom he has named in the report, to prove the charges before the Sub-Divisional Officer. The petitioner would have opportunity to cross-examine those cardholders. If that practice of a viva voce examination-in-chief, for some reason, be not countenanced by the procedure for holding such inquiries prescribed under some statutory rule or even a Government Order, in that event, affidavits of those cardholders ought to have been filed by the State to prove its charges against the petitioner. The petitioner could then have requested some of those deponents to be summoned for cross-examination in respect of whatever they deposed on facts, in support of the charges.

14. The State cannot be presumed to have come before the Sub-Divisional Officer with a pre-established case, merely because it is said in the charge-sheet that some statements of cardholders have been recorded by the Supply Inspector. The burden to prove those charges would always be on the State. At the same time, it does not mean that the charges against the holder of fair price shop license have to be proved beyond reasonable doubt by the State, like a criminal trial. Ideally, the standard of proof, in the opinion of this Court, would be preponderance of probability or the civil standard. Unfortunately, nothing here has been done by the State to prove the charges, except laying a charge-sheet and the two authorities accepting the charges by their folly in not distancing themselves from the State in their different role of quasi-judicial authorities, under the Control Order of 2016, charged with the responsibility to pronounce upon rights of a fair price shop license holder, that would visit him with adverse civil consequences. The Appellate Authority has acted no differently from the Sub-Divisional Officer and his order is more sketchy and casual than that of the authority of first instance.

15. This Court is of opinion that it is not a case, as the learned Counsel for the petitioner says, of non application of mind by the two authorities below, but a case of a fundamental fallacy about their understanding of the manner in which a quasi-judicial inquiry ought to be undertaken. This Court does not propose to determine the validity of the charges on merits or the quantum of penalty inflicted, it would require a re-determination of the case by the authority of first instance.

16. In the result, this petition succeeds and stands allowed in part. The impugned orders dated 21.11.2020 passed by the Joint Commissioner (Food), Lucknow, in Case No. 3561 of 2018 and the order dated 19.03.2018 passed by the Sub-Divisional Officer, Mitauli, District - Lakhimpur Kheri are hereby quashed. The Sub-Divisional Officer concerned shall now proceed to inquire into the charges afresh and pass an order in accordance with law, after hearing the petitioner, bearing in mind the guidance in this judgment, within a period of six weeks of receipt of a copy of this order.

17. There shall be no order as to costs.

Order Date :- November 8, 2021

I. Batabyal / Shahroz

(J.J. Munir, J.)

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