Court No. - 49
Case :- WRIT - C No. - 50237 of 2015 Petitioner :- Radhey Shyam Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- C.K. Parekh Counsel for Respondent :- C.S.C.,Satyawan Shahi,Saurabh Kumar
Hon'ble Ajit Kumar,J.
By means of this writ petition under Article 226 of the Constitution, the petitioner has challenged the order dated 31st October, 2014 whereby the fair prince shop license/ agreement has come to be cancelled on several charges being found proved as well as the order of the appellate authority dated 28th July, 2015 rejecting the appeal against the said order.
Briefly stated facts are that the petitioner who had the fair price shop license/ agreement with the respondent-State was served with a suspension order dated 31st October, 2014 on twin charges: one, during spot inspection conducted on 9.10.2014 by the Area Rationing Officer his shop was found closed and no sign board/ stock board/ rate board or any other board showing toll free number was hanging outside and there was no list depicting the name of ration-card holders painted on the wall of the shop; and the second, Doodhnath son of Beerbal, an Antodya Card Holder having ration card bearing no. 31261 reported that he was having APL card on which the petitioner has not distributed essential commodities, further one Rama son of Babulal an Antodya Card Holder bearing no. 51555 informed the inspecting officer that he was having a BPL card bearing no. 82814 on which he receives cereals only, likewise complaint was made by one Lallu son of Sumer Antodya Card Holders bearing No. 31280 as also Shiv Muhrat Antodya Card Holder bearing no. 51568 and 51528 but he was given cereals only on one Antioday card and several other card holders also reported to have made complaints.
The suspension order also carried detailed enquiry report in which not only the complaints were reported to be made by several ration-card holders but it was reported that from the perusal of distribution register it was found that in the register of serial no. 11 the entry was of Santara wife of Dukkhi Card No. 31282 whose name was also recorded at serial no.
258 so also with Nirmala whose name was recorded at serial no. 33 and again her name was entered at serial no. 250, so also Totri whose name was recorded at Serial No. 41 and again her name was recorded at serial no. 264, so also Shivmurat whose name was recorded at serial no. 66 and again his name was recorded at Serial no. 263 so also Pyare Lal whose name was recorded at serial no. 142 again his name was recorded at serial no. 195, and so also Raja Ram whose name was recorded at serial no. 17 again his name was recorded at serial no. 30.
So according to the enquiry report this above was a serious irregularity in maintenance of distribution register. The petitioner was also directed to produce the relevant register maintaining entries of the relevant stock register and distribution register for the last three months. However, the petitioner did not submit any reply and accordingly the petitioner was sent reminder letter dated 8.12.2014 requiring him to submit the documents as asked for and also to submit his explanation. The said letter is stated to have been served on 8.12.2014. Since the petitioner was afforded time to submit reply by 14th January, 2015 and the petitioner did not submit reply, the prescribed authority proceeded to hold that the charges stood proved and, accordingly vide order dated 15.1.2015 the fair price shop of the petitioner was cancelled.
The petitioner preferred an appeal in which he stated that on 9.9.2014 the petitioner had to rush to Roberstgang for the treatment of his daughter who had suddenly fallen ill and that is why the shop was closed on 9.9.4014. The petitioner specifically pleaded before the appellate authority that the list of the card-holders were duly painted out side the shop. The rate board was kept inside the shop because the rate board carries entries with the use of chalk and when the shop is closed normally it was erased by the children. He submitted that the Doodh Nath bearing card no. 31261 was not the Antyodaya card holder; that Antyodaya Card Bearing no. 51555 was recorded in the name of Kanti wife of Rama and so also he gave detailed reply to the various charges with regard to various categories of ration-card holders. He further submitted that in the preparation of ration-card the fair price shop dealer had no role to play and it was the Government authorities who were duty bound to prepare the list of categorizing the persons for the purpose of ration-card and the petitioner, therefore, could not be saddled with the liability if a particular ration-card holder had got double entry.
The commissioner however, further considered the reply of the petitioner but placing reliance upon the enquiry report proceeded to justify the order passed by the prescribed authority and rejected the appeal.
In matters of cancellation of fair price shops where ex parte enquiry report is obtained resulting in the suspension of the fair price shop license it has been held, time and again, by this Court that proper enquiry in terms of the full-fledge enquiry should be conducted but before any such enquiry is conducted it is also obligatory on the part of the licensing authority to provide a copy of the enquiry report and other documents and papers, in the form of complaints made to the enquiry officer, on the basis of which he conducted ex parte enquiry. In the absence of supply of enquiry report which led to setting into motion the full-fledge enquiry, it can safely be concluded that proper and reasonable opportunity of hearing was not afforded to the fair price shop dealer.
Enquiry report if is being relied upon then the party considering the report is duty bound to get the proper reply from the licence holder after supplying a copy of the said enquiry report. From the entire recitals made in the order passed by the prescribed authority the only finding returned is that since the petitioner failed to turn up to submit reply in spite of notice being served upon him, the charges stood admitted, however, this Court cannot justify such a disposal of the enquiry as the proper one. In appeal this ground was taken by the petitioner and explained the circumstances with which he could not submit reply but I find the appellate authority has proceeded to pass the order on the basis of an enquiry report and has virtually concurred with the findings returned by the prescribed authority without any independent application of mind.
Since the petitioner did not have enough opportunity to contest the matter in the absence of supply of enquiry report, the matter is remanded to the prescribed authority and the order dated 31.10.2014 passed by the prescribed authority and the order of the appellate authority dated 28.7.2015 are hereby quashed.
The petitioner shall be supplied with a copy of the enquiry report and also such materials on the basis of which the enquiry was set into motion within two weeks from the date of production of certified copy of the order. The petitioner shall have two weeks’ time thereafter to submit reply to the charges and also to the enquiry report. Full fledged enquiry shall be conducted in the matter by the prescribed authority either himself or appointing some officer and after giving full opportunity of hearing to the petitioner orders shall be passed afresh.
The status of the shop as on today shall continue and shall abide by the ultimate order to passed by the prescribed authority.
With the aforesaid observations/ directions the writ petition stands disposed of.
Order Date :- 26.4.2019 Nadeem Ahmad