Sanjulata Pradhan vs State Of Odisha And Others
2023 Latest Caselaw 1483 Ori

           HIGH COURT OF ORISSA: CUTTACK

                     W.P.(C) No.29404 of 2021

   In the matter of an application under Articles 226 and 227 of
   the Constitution of India.


                               -----------

   Sanjulata Pradhan                    ...             Petitioner

                                 - Versus -

   State of Odisha and Others           ...             Opposite parties

       For Petitioner                   ...       M/s. H.S. Mishra,
                                                A.K. Mishra,
                                                R. Dash & S.K. Hota

       For Opposite Parties             ...      Mr. T.K. Pattnaik, ASC,
                                               Additional Standing Counsel

                              --------------

   PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing : 19.12.2022 Date of judgment : 17.02.2023

A.K. Mohapatra, J. The Petitioner, who is a retailer under the

Public Distribution System, has approached this Court by

filing the present writ petition assailing the Office Order // 2 //

dated 2.4.2020 under Annexure-2 passed by the Opposite

Party No.2-the Additional District Magistrate, Rourkela as

well as the order dated 1.9.2021 passed by the Opposite Party

No.2-Additional District Magistrate, Rourkela under

Annexure-5 purported to be under Clause-10 of the Odisha

Public Distribution System (Control) Order, 2016 (in short

"OPDS (Control) Order, 2016") thereby cancelling the PDS

license issued in favour of the present Petitioner.

2. The factual matrix as has been pleaded in the writ

petition, in a nutshell, is that pursuant to an advertisement in

the year 1996 issued by Opposite Party No.2 inviting

applications for selection and appointment of retailer under

Public Distribution System for Sector-5, Rourkela which was

specifically reserved for ladies, the Petitioner being eligible,

who had no source of livelihood, applied for the said

retilership in respect of Sector-5 area Rourkela. Since the

Petitioner was duly selected as she was fulfilling all the

eligibility criteria, the Opposite Parties issued engagement // 3 //

letter in her favour as retailer under PDS system. Thereafter

the engagement order was being renewed from time to time.

In the writ petition, it has been pleaded that the Petitioner,

who has been providing service in the locality for last 26

years, has an unblemished carrier, i.e., there is no allegation

of violation of any terms and conditions of the license issued

in favour of the Petitioner. Further, none of the consumers of

the locality have ever complained about the services provided

by the Petitioner in the locality during last 26 years.

3. While this was the position, the Petitioner was

discharging her duties during Covid pandemic period and

with much difficulty she was providing PDS commodities to

the resident of the locality. During such acute Covid period,

on 01.04.2020, while discharging her duties to supply PDS

commodities at the door step of consumers as per the

direction of Opposite Party No.2 by following the Covid

guidelines, she was called by the Assistance Civil Supply

Officer, namely, one Ramchandra Tudu and she was asked to // 4 //

report at her shop. The Petitioner accompanied by her sons,

who were otherwise busy in distribution of PDS commodities

at the door step of consumers arrived at the spot. She

discovered that the supply officer, executive magistrate and

other officials were questioning about a Tempo said to have

been seized with 10 Quintals of rice. She disclosed before

them that she had no nexus with such transportation of rice

and further stated that her stock is up-to-date as per the stock

register maintained by her. While the matter stood thus, to the

utter surprise and dismay of the Petitioner, on the very next

day, i.e., on 02.04.2020, she received an order from Opposite

Party No.2 whereby her retailership had been suspended with

a further direction to tag the center of the Petitioner.

4. It is submitted by Mr. H.S. Mishra, learned Senior

Counsel appearing for the Petitioner that initially in the year

1996, the Petitioner was appointed as a retailer under PDS

system in respect of Section-5, Rourkela, which was reserved

for Woman Category. He further submitted that the Petitioner // 5 //

has been sincerely discharging her duties and distributing

PDS commodities for last 26 years and, as such, she has an

unblemished carrier. He further emphatically argued that

during last 26 years not a single notice has been issued to the

Petitioner for violation of any of the provision of law and no

complaint whatsoever has been received against her from the

local consumers. Although formal checkings took place on

regular intervals as per law, the authorities who were involved

in such checkings have submitted their report expressing their

satisfaction, as such, no irregularities or illegalities were

found by such authorities.

5. With regard to the alleged occurrence on 1.4.2020, Mr.

Mishra, learned Senior Counsel appearing for the Petitioner

submitted that during the Covid outbreak in the year 2020,

when the entire State was facing lockdown and shutdown, the

Petitioner on the direction of the State Government tried to

reach out to the customers and made an attempt to reach at the

door steps of each and every customer to deliver the PDS // 6 //

commodities. Accordingly, the PDS commodities were

loaded on a Tempo and, as such, were carried to the door

steps of the consumers for the purpose of distribution to the

genuine beneficiaries at the time of crisis. Unfortunately, the

officers of the local administration, who were not favourably

disposed towards the Petitioner, intentionally conducted a

seizure, as a result of which, the Tempo carrying PDS articles

to the door step of consumers was seized on the way. Mr.

Mishra further submits that on verification of records, no

shortage of rice stock was found. He further contended that

no allegation whatsoever has been received from any of the

beneficiaries under the PDS system with regard to non-

availability of PDS commodities in the locality. Mr. Mishra

also submitted that only to nail the Petitioner and to take

away her dealership, a conspiracy was hatched behind the

back of the Petitioner, as a result of which, the Petitioner is

being harassed on being influenced by the local authorities for

none of her fault.

// 7 //

6. A counter affidavit has been filed on behalf of the State-

Opposite Parties No.2 and 3. In the counter affidavit, it has

been pleaded that upon getting telephonic instruction on

1.4.2020 regarding black marketing of PDS commodities, the

Civil Suppliers Enforcement Squad comprising of Sri R.C.

Tudu, Assistant Civil Suppliers Officer; Smt. Chandrika

Sahu, Marketing Inspector; and Smt. Neetika Kumari Naik,

Marketing Inspector, Rourkela rushed to the Shop No.127,

Ispat Market, Rourkela where one Sri Manoj Mohata, Auto

Driver was caught hold of by the public while unloading rice

from his Auto bearing Registration No.OD-14-M-8643. Total

20 Nos. of bags containing rice were being unloaded and kept

inside the shop of one Padmalochan Parida, who is not a PDS

dealer. Accordingly, the same was seized by the Marketing

Inspector, Rourkela present at the spot. On being asked, the

Auto Driver replied that as per the direction of Sri Sankar

Choudhury of Golghar, Sector-5, Rourkela, he has brought

rice from one Smt. Sanjulata Pradhan (Petitioner) for delivery // 8 //

at the shop of Sri Padmalochan Parida. Thereafter, the rice

stock was seized, zimanama was prepared and the PDS

commodities were sent to the nearest rice receiving centre

and, accordingly, complaint was lodged before the Collector-

cum-District Magistrate, Rourkela.

7. It has also been stated in the counter affidavit that to

ascertain the facts, the Squad and Executive Magistrate-cum-

Tahasildar along with police personnel had visited the

resident of one Sri Sankar Choudhury, Sector-5, Rourkela

where they did not find any rice stock. Then they went to the

FPS shop of the Petitioner which was found closed.

Thereafter, the son of the Petitioner came and opened the

shop and a detailed physical verification was conducted.

Further, it is alleged on such verification, it was found that

there is shortage of stock of 13.25 quintals (29 bags) of rice

and the same is stated to be acknowledged by the son of the

Petitioner in the statement prepared subsequently. Thereafter,

the authorities followed the procedure for seizure of stock.

// 9 //

8. Learned Additional Standing Counsel appearing for the

State-Opposite Parties submitted that it is a clear case where

the FPS dealer was involved in clandestine business and

distributed the PDS stocks in the open market for her personal

gain. He further contended that nothing has been mentioned

in the physical verification report which fact is evident from

Annexure-E/3 to the counter affidavit and further the physical

verification report has been duly acknowledged by the son of

the Petitioner. Furthermore, the son of the Petitioner while

acknowledging the physical verification report has not

mentioned anything regarding his claim that PDS stock had

been taken out for distribution at the door step of the

consumers. Basing on the irregularities committed, the

Petitioner was placed under suspension and a proceeding was

initiated against her.

9. Learned Additional Standing Counsel appearing for the

State-Opposite Parties further contended that the Petitioner

submitted a representation before Opposite Party No.2 on // 10 //

08.01.2021 and basing on the same, notice was issued to the

Petitioner to appear before Opposite Party No.2 for personal

hearing. It was further contended that some of the documents

filed along with the writ petition was never filed before the

authorities. Therefore, the same has not been considered.

Furthermore, pursuant to the notice, the Petitioner appeared

before Opposite Party No.2 on 30.03.2021 for personal

hearing. Thereafter, the matter was adjourned to 7.4.2021.

Since the matter could not be taken up due to situation

emerging out of Covid-19 pandemic outbreak, again notice

was issued for personal hearing on 1.9.2021 on which date the

Petitioner also appeared and filed hazira.

10. Despite grant of opportunity, the Petitioner could not

explain the shortage of rice. Accordingly, the authorities have

concluded that the Petitioner was involved in clandestine

business of diverting PDS stock to the open market and,

accordingly, license which had expired by then was not

renewed by the authorities and the same was cancelled for // 11 //

violation of Clause-10(2)(d) of the OPDS (Control) Order,

2016 vide order dated 01.09.2021.

11. In view of the aforesaid submission, learned Additional

Standing Counsel submitted that the State-Opposite Parties

have not committed any illegality in cancelling the license of

the Petitioner. Therefore, the writ petition filed by the

Petitioner is devoid of merit and, accordingly, the same

should be dismissed.

12. Having heard the learned counsels for the respective

parties and upon a careful consideration of the materials

placed before this Court, the question that is involved in the

present writ application and which requires adjudication by

this Court is whether the authorities before cancelling the

license of the Petitioner have followed the procedure

prescribed under the OPDS (Control) Order, 2016 or not?

While addressing the same issue, Mr. Mishra, learned Senior

Counsel appearing for the Petitioner in his usual vehemence

argued that the authorities have not followed the procedure // 12 //

prescribed under the Control Order, 2016. Therefore, the

conduct of the Opposite Parties in cancelling the license of

the Petitioner is vitiated and, as such, the impugned order

dated 1.9.2021 under Annexure-5 needs to be set

aside/quashed by this Court. While assailing the impugned

order under Annexure-5, Mr. Mishra emphatically argued that

the licensing authority before cancelling the license did not

provide an opportunity of hearing to the Petitioner that has

been mandated under the PDS (Control) Order, 2016. In view

of such stand, this Court without entering into the matter,

finds that this Court is required to consider the fact as to

whether an opportunity of hearing was provided to the

Petitioner before cancelling her license or not? Before

analyzing the said issue, this Court would like to mention the

fact that the impugned order was passed when the Covid-19

pandemic was on its pick and there was frequent imposition

of lockdown and shutdown in the entire State. No doubt, it is

the requirement of law that before passing any cancellation // 13 //

order, the authorities are bound to provide an opportunity of

hearing to the licensee.

13. On perusal of the OPDS (Control) Order, 2016, it is

observed that the control order confers power on the licensing

authority to cancel the license in a case contravention of

conditions of the control order. However, the proviso

appended to the main clause stipulates that no order shall be

made for cancellation of license unless the licensee has been

given reasonable opportunity to put-forth his/her case in the

event he/she desires a personal hearing against the proposed

cancellation or forfeiture.

14. On a careful analysis of the fact of the present case, it

appears that the licensing authority took action against the

Petitioner for violation of the conditions contained in the

license as well as in the control order. Therefore, a proceeding

was initiated against the present Petitioner for cancellation of

his license and on further scrutiny of facts, it appears that

notices were given on several occasions to appear before the // 14 //

concerned authority. However, on verification of record, no

materials were found to come to a definite conclusion that in

fact an opportunity of personal hearing was afforded to the

Petitioner to explain her case and to examine the fact as to

whether the Petitioner was given any opportunity to explain

her case and as to whether she was afforded any opportunity

of hearing, this Court called for the records from the office of

the A.D.M., Rourkela pertaining to the present case. On

perusal of the note sheet dated 1.9.2021, it appears that

although it has been mentioned that the Petitioner was heard

personally, however, the contention of the Petitioner have not

been taken note of and discussed. Further, the said note sheet

does not reveal that the Petitioner had attended the hearing

and put her signature on the record. Learned Additional

Standing Counsel appearing for the State-Opposite Parties

very fairly conceded that although the authorities have

followed all the procedure, however, there is nothing on // 15 //

record to show that an opportunity has been given to the

Petitioner to explain her case.

15. Considering the aforesaid aspects and taking into

consideration the fact that the order was passed during the

period of Covid-19 outbreak and in the absence of any

material on record to show that the Petitioner had in fact

attended hearing and submitted her show cause reply, this

Court in the greater interest of justice deems it proper to

provide an opportunity to the Petitioner to put-forth her case

before licensing authority. Accordingly, the impugned order

dated 1.9.2021 passed by the Opposite Party No.2-Additional

District Magistrate, Rourkela under Annexure-5 is hereby set

aside and the matter is remitted back to the Opposite Party

No.2-Additional District Magistrate, Rourkela to consider the

matter afresh by providing an opportunity of personal hearing

to the Petitioner. It is open for the Petitioner to submit her

reply along with relevant documents in support of her

contention before the ADM, Rourkela within a period of two // 16 //

weeks from the date the notice from the Opposite Party No.2-

Additional District Magistrate, Rourkela is received. Further,

the Opposite Party No.2-Additional District Magistrate,

Rourkela is directed to reconsider the matter and pass a

speaking and reasoned order in accordance with law within a

period of six weeks from the date of communication of this

order. The Opposite Party No.2-Additional District

Magistrate, Rourkela is directed to act upon production of

certified copy of this judgment.

16. With the aforesaid direction and observation, this writ

petition is allowed. However, there shall be no order as to

cost.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 17th February, 2023/D. Aech, P.A.