Ishak Mohammad vs State Of U.P. And 3 Others
2023 Latest Caselaw 14367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:98401
 
Court No. - 52
 

 
Case :- WRIT - C No. - 42936 of 2016
 

 
Petitioner :- Ishak Mohammad
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- J.P. Pandey,Radheshyam Yadav
 
Counsel for Respondent :- C.S.C.,Amresh Singh,Suresh Dhar Dwivedi
 

 
Hon'ble Kshitij Shailendra,J.

1. Heard Sri J.P. Pandey, learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Sher Bahadur Singh, learned counsel for the respondent-gaon sabha.

2. The petitioner was running a fair price shop. On 02.06.2016, an inquiry is said to have been conducted by the District Supply Inspector and during the course of such alleged inquiry, statements of husbands of eight ration card holders were said to be recorded in which the allegations of improper distribution of essential commodities were levelled against the petitioner. Based upon the aforesaid alleged inquiry dated 02.06.2016, suspension order was passed on the very next day i.e. on 03.06.2016 suspending the fair price shop licence of the petitioner. Consequently, the shop was directed to be temporarily attached till further orders with one Ashfakh Khan. The petitioner was called upon to submit his explanation.

3. The petitioner submitted his explanation dated 18.06.2016 which was received in the respondent's office on 20.06.2016. A specific stand was taken in the explanation that no inquiry was conducted on the spot and neither any officer reached there nor did anyone call upon the petitioner to participate in the alleged inquiry. It was further stated that the statement of Hamid Husain husband of one Kanijan was said to have been recorded during the course of alleged inquiry on 02.06.2016, whereas Hamid Husain had died 20 years ago. Along with the explanation, affidavit of Kanijan was also annexed. It was further alleged that instead of recording statements of card holders, statements of their husbands have been recorded which is not as per the procedure prescribed. In all, the alleged inquiry was attacked on and suspension order was sought to be set aside.

4. The very next day i.e. on 21.06.2016, rejecting the explanation submitted by the petitioner, the licence of the fair price shop was cancelled observing that on the basis of statements it was established that the petitioner had committed irregularity in distribution of essential commodities which act of his was in violation of the Control Order, 2004.

5. The petitioner filed an appeal against the cancellation order, which has also been dismissed by the second order impugned dated 05.08.2016.

6. Learned counsel for the petitioner has argued that both the courts have not taken into consideration the specific ground taken by the petitioner that no statement of any card holder was recorded, rather the statements of their husbands are said to have been recorded, although various such persons had died. Learned counsel has also referred to a death certificate of one Beche Shah i.e. the husband of one Ayasha whose statement was shown to have been recorded at Sl. No.2 of the suspension order. Other affidavits of all those persons have been recorded wherein it was deposed that they had no grievance against the petitioner in so far as distribution of essential commodities is concerned. In so far as the death of Hamid Husain i.e. husband of Kanijan is concerned, despite recording the factum in the orders impugned, the inquiry has not been vitiated, rather it has been observed that exact date of death of Hamid Husain was not known.

7. Further submission of Sri Pandey is that no charge sheet was served upon the petitioner and even no copy of the alleged inquiry report was furnished upon him and whatever he could reply, that was on the basis of the contents of the suspension order and not on the basis of contents of the inquiry report. He therefore submits that principles of natural justice have been violated and very hurriedly within a period of 18 days, the entire proceedings have been concluded right from holding of alleged inquiry till passing of the cancellation order. Specific averment has been made in paragraph 7 of the writ petition that copy of the inquiry report was not served upon the petitioner. Learned counsel for the petitioner has, in support of his submissions, placed reliance upon the judgments in the case of Santara Devi Vs. State of U.P. and others: 2016 (2) ADJ 70 and Idrish Vs. State of U.P. and others: 2016 (11) ADJ 161.

8. Per contra, learned Standing Counsel has supported the impugned orders and it has been argued that once the petitioner himself absented from the spot as noticed in the suspension order, it was not necessary to provide any copy of inquiry report to him. It has further been argued that the petitioner somehow procured the affidavits of husband of card holders which is an afterthought and therefore no illegality has been committed by the authority in passing the orders impugned.

9. Having heard the learned counsel for the parties, I find that principles of natural justice have been given a complete go bye in the present case. The submission of the learned counsel for the petitioner that copy of the inquiry report dated 02.06.2016 was not supplied to him stands admitted to the State in its counter affidavit. Further, once I find that the card holders had, immediately after suspension order, submitted affidavits in favour of the petitioner and the documentary evidence annexed to the writ petition and also annexed to the explanation against the show cause notice clearly establish that some of the alleged witnesses were no more on the date of recording of alleged statement on 02.06.2016, it was incumbent for the authorities to revoke the suspension order and re-initiate the proceedings if they wanted to proceed against the petitioner and after following due process of law and after providing full opportunity of hearing to the petitioner, a fresh decision could have been taken.

10. I have also perused the ratio laid down in the case of Smt. Santara Devi (supra) and Idrish (supra). In both the cases, this Court has elaborately described the procedure which has to be followed in the cases of cancellation of fair price shop licence and it has been held that unless the aforesaid inquiry is conducted after making adherence of the principles of natural justice, the orders cancelling the fair price shop licence would be unsustainable. This Court in the aforesaid facts, after passing of the orders impugned, remanded the matter to the authorities to re-examine the issue and pass a fresh order in accordance with law.

11. Having heard the learned counsel for the parties, I am satisfied that the ratio laid down in the authorities of Smt. Santara Devi (supra) and Idrish (supra) fully apply to the case of the petitioner and in the light of factual matrix of the case, the orders impugned cannot sustain.

12. The writ petition succeeds and is allowed. The impugned orders dated 21.06.2016 passed by Sub-Divisional Officer, Sadar, Bareilly and 05.08.2016 passed by the Deputy Commissioner (Food), Bareilly Division, Bareilly are hereby quashed.

13. The matter is remanded to the Sub-Divisional Officer, Sadar, Bareilly (respondent no.2) to pass a fresh order in accordance with law with reference to the year 2016 that is to say that whatever inquiry was got conducted by the Sub-Divisional Officer, copy of the entire record of the same shall be served upon the petitioner within a period of three weeks from today. All copies of the statements which are part of the inquiry report shall also be served upon the petitioner.

14. The petitioner shall be allowed to submit a reply along with documentary evidence in support of his defence.

15. After considering the defence, the Sub-Divisional Officer shall pass a fresh order in accordance with law. If nothing adverse is found against the petitioner on the basis of defence taken by the petitioner, decision to restore back/revive the licence of the petitioner shall be taken.

16. The entire exercise shall be carried out positively within a period of two months from the date a certified copy of this order is produced before the Sub-Divisional Officer.

Order Date :- 8.5.2023

AKShukla/-