Court No. - 10
Case :- WRIT - C No. - 18955 of 2016 Petitioner :- Ramesh Chand Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ajay Kumar Singh,Ashish Kumar Singh,Uttar Kumar Goswami Counsel for Respondent :- C.S.C.,Anil Kumar
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel.
The petitioner before this Court is assailing the validity of order dated 08.02.2016 and 10.03.2016 passed by Sub Divisional Magistrate, Sardhana by which his fair price shop license has been cancelled as well as order dated 06.4.2016 passed by Joint Commissioner (Food), Meerut Division, Meerut in Appal no.11 of 2016 (Ramesh Chand vs. State of U.P and others), whereby, the appeal in question has been dismissed.
It appears that on the basis of certain complaint and alleged enquiry, the license of the petitioner was suspended. Thereafter, an explanation from the petitioner was called and considering the same the order impugned cancelling the license was passed and the same was approved by the appellate order. It is submitted by learned counsel for the petitioner that before cancellation of the allotment of fair price shop license in favour of the petitioner, no enquiry report alongwith statements have been supplied to the petitioner and even the complainants namely Ishwar Singh s/o Prithi, Sanjiv Kumar, Jile Singh are not at all attached card holders of petitioner's fair price shop and on the vindictive and collusion of Gram Pradhan, they have moved the aforesaid complaints and as such the entire action taken by the respondents is in teeth of the procedure laid down in the Government Order dated 29th July, 2004 and the U.P. Scheduled Commodities Distribution Order, 2004 (Distribution Order, 2004) and the provisions of the same had not been followed in the present case, therefore, cancellation of allotment of fair price shop license in favour of the petitioner is illegal and against the principle of natural justice. The aforesaid Government Order dated 29th July, 2004 and the Distribution Order, 2004 came up for consideration before the Full Bench of this Court in Puran Singh v. State of U.P. & Ors., 2010 (3) ADJ 659 (FB) in which it is held that in case after suspension of the agreement to run fair price shop the authority decides to hold an enquiry for cancellation of the agreement, then that requires full fledged enquiry. Relevant para 35 of the said judgment is quoted as under:-
"35. Para 4 and 5 of the Government Order clearly permits fulfledged enquiry pursuant to the show cause notice for cancellation and then final decision in the matter. So far the order of suspension is concerned Government Order do not provide any appeal and at the same time there was no contemplation of signing an agreement as was made obligatory pursuant to Distribution Order of 2004."
It is contended that the judgment of Puran Singh (Supra) has also been followed by this Court, while passing the order dated 28.11.2014 in Writ C No.12737/2013 and as such, full fledged inquiry is necessary before cancelling the agreement and it would require service of the charges, alongwith material in support of each charge, the information about the place and date of inquiry, the statements of persons on whose complaint inquiry was started or in a case of suo motu inquiry, the statements of the persons appearing before the Enquiry Officer.
The said view has also been affirmed by this Court in Smt. Santara Devi vs. State of U.P. and others 2016 (2) ADJ.
Learned counsel for the petitioner has also contended that in the present matter at no point of time the procedure as has been contemplated in G.O. dated 29.7.2004 has ever been adhered. In support of his submissions, he has also placed reliance on the Division Bench judgment of this Court in Gulab Chandra Ram v. State of U.P. & Ors., 2009 (2) AWC 1066 as well as judgment in Mahendra Singh v. State of U.P. & Anr., 2016 (8) ADJ 732. Relevant para 13 of the judgment in Mahendra Singh (Supra) is quoted as under:-
"It is also well settled that an order which leads to civil consequences and have passed without opportunity must be passed in conformity with the principles of natural justice. Reference may be had in State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75; State of Orissa v Dr. (Miss) Binapani Dei, AIR 1967 SC 1269; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Maneka Gandhi Vs. Union of India (1978)1 SCC 248 and D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993 ,SCC 259 Canara Bank vs. V.K.Awasthy (2005 (6) SCC 321), Bidhannagar (Salt Lake) Welfare Ass. vs. Central Valuation Broad and Others ((2007) 6 SCC 668) Devdutt vs. Union of India and others (2008(3) ESC 433(SC) and Suresh Singh vs. Board Of Revenue And 3 Ors. (2014 (5) ADJ 697)."
Learned counsel for the petitioner has vehemently contended that the petitioner while furnishing reply to the show cause notice had also filed notarised affidavits of certain card holders specifically asserting on oath that forged and false complaints were made against the petitioner due to enmity. It is contended that at no point of time the said notarised affidavit had been considered by the licensing authority and in most arbitrary manner the finding of fact has been recorded, which is contrary to law.
On the other hand, in compliance of order dated 06.12.2018, relevant records have been produced before this Court and on the strength of said record, learned Standing Counsel has opposed the arguments advanced on behalf of petitioner by submitting that various charges have been levelled against the petitioner, wherein, grave charge of maldistribution of kerosene oil have been levelled and in the distribution register at page Nos. 13 and 14, it has been mentioned that on 21.01.2016 268 ltrs. of kerosene oil have been distributed but without mentioning any serial number of card holder and after counting the same, it has been found that distribution has been done to 67 card holders at the rate of 4 ltrs. per ration card amounting to total of 268 ltrs. but in the stock register at page no.111 it has been mentioned that on the same day 400 ltrs. kerosene oil has been distributed showing the stock of kerosene as 'nil' and as such, 132 ltrs. of kerosene oil have been misappropriated and as such, the Authority, on the spot, on the basis of allegations so levelled against the petitioner, has proceeded to cancel the fair price shop license of the petitioner and the same has also been approved by the Appellate Authority. In this backdrop, he submits that once concurrent finding of fact has been recorded by both the Authorities, then there is no reason or occasion to substitute the finding recorded by both the courts' below and as such, no interference is required in the matter.
Heard rival submission and perused the record.
Admittedly, in the present matter, on certain complaint the enquiry was conducted and the report was submitted and various charges have been levelled against the petitioner. Thereafter, a show cause notice was issued to the petitioner to which he had submitted his reply denying the allegations made against him. Finally, the authority concerned has cancelled the fair price shop licence of the petitioner. The Court has proceeded to peruse the record in question and finds that so far as the charges levelled against the petitioner with regard to maldistribution of kerosene oil in the month of January, 2019 is concerned, the same are substantiated and distinguished from the record in question.
The said scenario has also been accepted by Shri Ashish Kumar Singh, learned counsel for the petitioner and in this backdrop, he very fairly submits that as far as the aforesaid discrepancy of maldistribution of kerosene oil in the month of January, 2016 is concerned, the same cannot be negated at this stage but on the other hand he submits that petitioner is running the fair price shop since long and the distribution of essential commodities as well as kerosene oil by the petitioner was being verified regularly and continuously by the authorities concerned from time to time and accordingly distribution certificates were also used to be issued in favour of the petitioner regularly. At no point of time, except the said discrepancy, he has violated any terms and conditions of the license nor committed any irregularity in distribution of essential commodities and as such, request has been made for taking a lenient view in the matter.
Once such an acquiescence has been made on behalf of petitioner, then the Court has again proceeded to peruse both the orders impugned and found that the core charge/allegation that has been levelled against the petitioner is with regard to malpractice/deficiency in distribution of kerosene oil in the month of January, 2016 wherein deficiency of 132 ltrs. has been found otherwise there is no other substantial charge/allegation of malpractice of other essential commodities has been levelled against the petitioner and so far as the other charges/allegations are concerned, the same revolve around the core issue.
Since the charges on which the punishment has been imposed are to be taken as correct, it is the licensing authority which should be best left with the duty of imposing the punishment after considering the facts and circumstances of the case. However, it is well settled that in case, if on the admitted facts, the punishment imposed is grossly disproportionate to the offence, which shocks the conscience of the Court, the Court has the power and jurisdiction to interfere with the punishment imposed.
In view of the above, this Court is of the considered opinion that the Authority concerned may have a re-look in the matter. The matter is relegated to the Licensing Authority with an observation that petitioner's other credentials may also be looked into and examined and in case on this solitary score, the fair price shop license of the petitioner has been cancelled, then lenient view may be taken in the matter on imposition of substantial cost.
The Writ Petition is disposed of accordingly. The original record is returned back to the learned Standing Counsel. It is made clear that the present order has been passed in peculiar facts and circumstances of the case and the same may not be taken as a precedent.
Order Date :- 19.12.2018 A. Pandey