Kailash Prasad Sah Son Of Late ... vs The State Of Jharkhand
2023 Latest Caselaw 1889 Jhar

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             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 W.P.(C) No. 4452 of 2012
        Kailash Prasad Sah son of Late Sudarshan Sah, resident of Village-
        Koraiya, P.O. Dumka, P.S. Dumka Muffasil, District-Dumka.
                                                               ... ... Petitioner
                                               Versus

     1. The State of Jharkhand.
     2. The Commissioner, Santhal Pargana Division, Dumka.
     3. The Deputy Commissioner, Dumka.
     4. The Sub-Divisional Officer, Dumka.
                                                                  ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Manoj Kumar No.4, Advocate For the Respondents : Mr. Gaurang Jajodia, AC to GP-II

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ORAL ORDER 09/Dated: 03rd May, 2023

1. The instant writ petitioner is under Article 226 of the Constitution of India, whereby and whereunder, the orders dated 07.01.2012 has been sought to be quashed by which the license to run the public distribution has been cancelled.

2. The brief facts of the case as per the pleading made in the writ petition which requires to be enumerated, reads as under:

The petitioner was the licensee of Fair Price Shop having licence no.80/99. The Block Supply Officer, Dumka on 09.11.2006 made inspection of the shop of the petitioner and during the inspection, the shop was found to be closed for which a show cause notice was issued to the petitioner vide memo no.729 dated 22.11.2006.

The petitioner, in pursuance of the show cause notice, submitted his explanation on 01.12.2006 stating that the shop was open during the working hour as usual and the BPL goods lifted before 09.11.2006 were supplied in presence of Nigrani Samittee.

Thereafter, vide memo no.813 dated 12.12.2006, the license of the petitioner was suspended on the basis of the report by Deputy Collector

and Supply Inspector that on 24.11.2006 and 25.11.2006 the petitioner was not found present at the shop and further vide memo no. 248 dated 07.03.2007 the license of the petitioner was cancelled by the Sub- Divisional Officer, Dumka.

Being aggrieved with the same, the petitioner preferred appeal before the Deputy Commissioner being R.M.A. No. 19/06-07 which was dismissed vide order dated 25.03.2009.

Thereafter, the petitioner filed revision being Licensing Revision No.94/09-10 which was also dismissed by the revisional authority vide order dated 07.01.2012.

3. The case of the petitioner as would appear from the pleading made in the writ petition is that although he was carrying out his business under the license granted to run the public distribution shop but without any rhyme and reason, allegation has been levelled that on 24.11.2006 and 25.11.2006 when the inspection was made, the petitioner was not present. Therefore, the show cause notice was issued asking the petitioner to give reply.

The petitioner submitted his reply and the same has been found to be not satisfactory by the licensing authority i.e., the Sub-Divisional Officer, Dumka and has cancelled the license to run the public distribution shop vide order as contained under memo no.248 dated 07.03.2007. The petitioner being aggrieved with the same, challenged the said order before the Deputy Commissioner by filing appeal being R.M.A. No. 19/06-07 which has also been dismissed vide order dated 25.03.2009.

The petitioner, thereafter, has approached before the Commissioner, Santhal Pargana Division challenging the order passed by the Deputy Commissioner by filing revision being Licensing Revision No.94/09-10 but the same was also dismissed vide order dated 07.01.2012. The writ petitioner being aggrieved with all the three orders passed by the authority concerned, has filed this writ petition under Article 226 of the Constitution of India.

4. Learned counsel for the petitioner has taken the ground that the basis of the issuance of show cause notice is the joint enquiry conducted by the Deputy

Collector and the Supply Inspector and the report was submitted that on 24.11.2006 and 25.11.2006, the distributor was found not present at the shop. The ground has been taken that the copy of the joint enquiry report ought to have been supplied along with the show cause for filing the effective reply to the said show cause but the joint enquiry report had not been supplied and hence, the petitioner has not been provided with adequate and sufficient opportunity, however, the reply was filed to the show cause taking the ground that on 24.11.2006 and 25.11.2006 the shop was not closed but without appreciating the said aspect of the matter, the license has been cancelled.

5. It has been contended that while cancelling the license, the Sub-Divisional Officer, Dumka has also taken into consideration the earlier decision of cancellation of license of the year 2003. It has been contended that the license even if cancelled in the year 2003, the same cannot be a ground for cancellation of the license as has been done by passing the impugned orders.

6. Further, contention has been made that the appellate authority has also not considered the aforesaid fact rather in one line, the appellate authority, the Deputy Commissioner has rejected the appeal by making observation that the reply furnished by the petitioner is not found to be satisfactory. Similar is the position with the order passed by the revisional authority.

7. Learned counsel for the appellant on the basis of the aforesaid ground has submitted that the impugned orders are not sustainable in the eyes of law.

8. Per contra, Mr. Gaurang Jajodia, learned AC to GP-II has submitted by defending the decision taken by the administrative authority by taking the ground that the fact about non-presence at the shop on 24.11.2006 and 25.11.2006 has been found by the committee basis upon which the show cause was issued and the decision for cancellation of license has been taken after providing due opportunity of hearing to the petitioner and hence, it cannot be said that the impugned decision is without following the principles of natural justice or suffers from tarnish consideration.

9. This Court has heard the learned counsel for the parties and considered the finding recorded by the revenue authority which the impugned orders herein.

10. The ground which has been agitated on behalf of the petitioner that the copy of the joint enquiry report has not been supplied which is the basis of the issuance of show cause notice, according to the considered view of this court, is required to be considered to be valid ground to interfere with the impugned order, reason for this is that the show cause notice is based upon the joint enquiry report, as such, when the enquiry has been conducted by the committee, which contains allegation of non-presence at the shop for two days, then it was the bounded duty of the concerned authority to supply the copy of the joint enquiry report along with the show cause so as to provide adequate and sufficient opportunity to the petitioner for filing the reply thereof.

11. The question may arise that the show cause notice has been given as is being agitated on behalf of the State, therefore, there is no violation of principles of natural justice.

12. The law is well-settled that the principles of natural justice is not a mere formality that a show cause notice will be given by making the reference of some allegation and in absence of the relevant documents which is the basis of the show cause.

The law is further settled that a thing which goes to the root is required to be provided to the concerned so as to file proper and effective reply and then it will be said that the concerned has been provided with adequate and sufficient opportunity to defend himself. Here, in the facts of the given case, the joint enquiry report goes to the root since the same is the basis of the allegation of non-presence at the shop for two days, i.e., on 24.11.2006 and 25.11.2006. Reference in this be made to the judgment rendered by the Hon'ble Apex Court in State Bank of India and others vs. D.C. Aggarwal and another, reported in AIR 1993 SC 1197, wherein at para-4 and 5, it has been held which is being quoted herein below :-

"4. xxx xxx Imposition of punishment to an employee, on material which is not only supplied but not disclosed to him, has not been countenanced by this Court. Procedural fairness is as much essence of right and liberty as the substantive law itself.

5. xxx xxx Purpose of supplying document is to contest its veracity or give explanation. Effect of non-supply of the report of Inquiry Officer before imposition of punishment need not be gone into nor it is necessary to consider validity of rule 5. But non-supply of CVC recommendation which was prepared behind the back of respondent without his participation, and one does not know on what material which was not only sent to the Disciplinary Authority but was examined and relied, was certainly violative of procedural safeguard and contrary to fair and just inquiry."

13. This Court, therefore is of the view that the said enquiry report since goes to the root and merely on the basis of the show cause, the same cannot be said that the petitioner has been given entire imputation in absence of non- supply of enquiry report.

The error can be curative and non-curative. Curative can be cured but if the error is non-curative, it cannot be cured unless the issue will be remanded from that stage for making it cured.

14. Herein, since the joint enquiry report has not been supplied to the petitioner and in absence thereof, the reply has been filed, therefore, non-supply of the joint enquiry report, according to the considered view of this Court, is to be considered as a non-curative error committed on the part of the State.

15. This Court, therefore, is of the view that merely because a show cause notice has been issued in absence of relevant documents, the same cannot be said to be sufficient compliance of the cardinal principle of natural justice.

The aforesaid aspect of the matter has also not been considered by the appellate or revisional authority.

16. This Court, therefore, is of the view that the impugned orders requires interference on the basis of the discussion made hereinabove.

17. Accordingly, the order dated 07.01.2012 passed by the Commissioner, Santhal Pargana Division, is hereby quashed and set aside. Consequently, the appellate order dated 25.03.2009 and original order dated 07.03.2007 are also quashed.

18. The law is also settled that on technicality no one can be allowed to take advantage since the allegation of non-opening of shops is there effective the beneficiary due to non-supply of commodities, therefore, this Court deems it fit and proper to remand the matter before the authority.

19. Now the question arises to which stage the matter be remanded. It can be at the revisional stage or appellate stage or the original stage.

20. Herein, since this Court has come to the conclusion as per the discussion made hereinabove that non-supply of the copy of the joint enquiry report is the ground to interfere with the impugned orders which can only be said to be cured if the remand will be at the original stage, i.e., at the stage of the licensing authority for consideration of the reply after supplying the joint enquiry report.

21. Accordingly, the matter is remitted before the Sub-Divisional Officer, Dumka to issue fresh show cause notice along with joint enquiry report within a period of four weeks from the date receipt of representation which is to be communicated by the petitioner.

22. The learned counsel for the petitioner undertakes to submit his reply within a further period of four weeks from the date of receipt of such show cause notice.

23. The concerned authority is directed to take final decision in accordance with law within a further period of four weeks.

24. It is made clear that the opening of the Public Distribution Shop will depend upon the final outcome of the decision taken by the concerned authority subject to the decision passed by the appellate or revisional authority.

25. In view thereof, the instant writ petition stands disposed of.

26. Pending interlocutory application(s), if any, also stands disposed of.

(Sujit Narayan Prasad, J.)

Saurabh/