Heard Sri Satish Kumar Sharma, learned counsel for the petitioner and learned counsel for the State.
The fair price shop licence granted to the petitioner was placed under suspension on 26.9.2017 on the basis of an inspection held by the Supply Inspector on 13.9.2017. As per the procedure provided under the government order dated 29.7.2004, a fair price shop licence is to be placed under suspension only in a situation where on the allegations levelled against the dealer being proved, an action of cancellation of fair price shop would be warranted.
In the present case, the order of suspension based on the Supply Inspector's report, has levelled a peculiar allegation. It is mentioned in the suspension order that the Supply Inspector upon an inspection found that the quantity of wheat supplied to the petitioner was short by 1.59 quintals whereas the quantity of rice supplied to him was in excess by 3.64 quintals. This allegation was levelled after taking note of the stock register and the stock lying available in the packed bags and loose. The suspension order issued on 26.9.2017 did not mention of any statements having been made the basis which were directed to be recorded by the Sub Divisional Magistrate on 14.9.2017 so as to prove the allegation of shortage.
The record of the case was summoned by this Court and has been produced. On a careful scrutiny of the record placed before this Court, it is gathered that a charge memo was further issued to the petitioner on 9.10.2017 to which he filed his reply on 13.10.2017. Insofar as the shortage of wheat by 1.59 quintals and the quantity of rice being found in excess by 3.64 quintals is concerned, the petitioner in his reply has clearly submitted that some of the beneficiaries preferred to take more wheat than rice and it is on account of the voluntary choice of the beneficiaries that a discrepancy in the accuracy of weight has occurred. It is also stated in the reply that a careful measurement of the loose stock would dispel the shortage, therefore, the notice was prayed to be withdrawn. The reply submitted by the petitioner also included affidavits of several beneficiaries in support of his defence.
This Court may also note that while issuing charge memo to the petitioner on 9.10.2017 by the Sub Divisional Magistrate, the Supply Inspector was required to obtain a reply from the petitioner and submit his detailed summary in the light of the reply so submitted within a period of 15 days. The record reveals that the Supply Inspector submitted his detailed summary before the Sub Divisional Magistrate on 8.1.2018 which is evident from page 106 of the record. The Sub Divisional Magistrate having regard to the summary placed before him, ordered on 12.1.2018 as under:
**mfpr nj fodzsrk dks O;fDrxr lquokbZ dk volj iznku fd;k tk,A** Thereafter a notice was issued to the petitioner by the Sub Divisional Magistrate on 15.1.2018 which reads as under:
"aavkidh nqdku dk fujh{k.k iwfrZ fujh{kd }kjk fnukad 14-09-2017 dks fd;k x;k FkkA fujh{k.k ds le; ik;h x;h vfu;ferrkvksa ds lEcU/k esa dk;kZy; i= la[;k&730 fnukad 09 vDVwcj 2017 ds }kjk vkjksi i= tkjh fd;k x;k FkkA mDr ds lEcU/k esa vki }kjk Li"Vhdj.k fnukad 13-10-2017 dks izLrqr fd;k x;k gS ftlesa vki }kjk 05 'kiFk i= ewy :i esa tks miftykf/kdkjh egksn;k dks lEcksf/kr gS rFkk 20 'kiFk i=ksa dh Nk;kizfr tks ek0 vk;qDr egksn; y[kuÅ e.My y[kuÅ dks izLrqr fd;s x;s gSA 05 ewy 'kiFk i=ksa o 20 'kiFk i=ksa dh Nk;k izfr;ksa dk ijh{k.k fd;s tkus gsrq vkidks funsZf'kr fd;k tkrk gS fd e; lk{;ksa ¼foxr rhu ekg ds LVkd [email protected]½ rFkk 'kiFkdrkZvksa lfgr O;fDrxr lquokbZ gsrq fnukad 19-01-2018 dks v/kksgLrk{kjh ds le{k izzkr% 10%30 cts mifLFkr gksdj viuk i{k izLrqr djsaA"
The record reveals that the petitioner alongwith other persons whose affidavits were placed reliance upon, presented himself on 19.1.2018. Strangely enough, on the date of petitioner's appearance alongwith the other deponents on 19.1.2018 except the statements of two persons on a single sheet of plain paper under their thumb impression and signature, no other person was subjected to any examination or verification of the affidavits placed reliance upon. The statements of two persons alone i.e. Prithvi Pal son of Khemkaran and Smt. Shanti wife of Bhoodhar were recorded by the Supply Inspector in his own handwriting on a single sheet. It is the same Supply Inspector who had submitted the preliminary report against the petitioner based on the inspection held on 13.9.2017..
The Supply Inspector while recording the proceedings even did not choose to confront the petitioner with the statements so as to verify the truth. The statements recorded by the Supply Inspector have merely been endorsed by the Sub Divisional Magistrate even without asking as to why the opportunity of cross-questioning was not afforded to the petitioner in the spirit of the order on the basis of which notice dated 15.1.2018 was issued. A mere statement recorded at the back was thus assumed as evidence to be placed reliance upon. After issuance of notice on 15.1.2018, the proceedings were not finalised by drawing up an enquiry report at all.
The recording of evidence in the absence of the competent authority and that too without following the due procedure under law as is evident from the record, is an unfair practice. Once a person is called upon to explain his position in respect of some allegations, it was incumbent upon the competent authority to adopt a fair procedure so that the decision making process remains unquestionable and impeccable.
The prescribed authority while proceeding to pass the order on 26.2.2018 has not weighed the reply of the petitioner on charge no. 1 by subjecting the preliminary report of the Supply Inspector to any enquiry. On charge no. 2, the statements of two persons are clearly recorded at the back of petitioner and the third charge is also presumed to be proved without verification of any list issued by the competent authority. The enquiry report which ought to have followed the notice issued on 15.1.2018 was not drawn by the prescribed authority at all. Any summary submitted by the Supply Inspector prior thereto on the basis of reply cannot be treated to be an enquiry report which was rather relevant for the purposes of crystallizing the charges. The enquiry report is an outcome of the consideration of material and evidences. This exercise was not carried out by the prescribed authority who as per the record produced before this Court, has partly acted himself and partly through the Supply Inspector at whose behest the proceedings came to be initiated. The prescribed authority ought to have involved some higher authority than the Supply Inspector for drawing up the summary or for recording evidence. Thus, the material upon which the prescribed authority placing reliance has proceeded was not conclusive. The legitimacy of the opinion formed by the prescribed authority in the impugned order, therefore, is without authority of law.
The present case, in the totality of circumstances did not constitute a grave irregularity looking to the voluntary option of taking wheat instead of rice by the beneficiaries. This is a well known practice which did require an equitable consideration by the prescribed authority. The stock was rather in excess. The explanation offered, in all probabilities, appears to be bonafide. The failure on the part of the prescribed authority to record evidence of the persons produced in support of defence is unsustainable. Denial of the opportunity to cross-examine or atleast a cross check by the authority himself of the two persons whose statements have been recorded to the disadvantage of the petitioner that too by the Supply Inspector shows a clear deviation from the procedure prescribed. The government order requires the enquiry by a higher authority than the one who has submitted the preliminary report. The record reveals that the prescribed authority has failed to apply his mind and has rather allowed the enquiry to be completed by the Supply Inspector who himself had submitted the preliminary report. The preliminary report which ought to have been proved was not subjected to any enquiry for being proved.
The order passed by the prescribed authority cancelling the petitioner's fair price shop licence on the strength of reasons assigned therein is clearly based on a faulty enquiry which could not be placed reliance upon. The government order dated 29.7.2004 which was applicable at the relevant point of time clearly prescribes the enquiry to be held by the prescribed authority himself or any authority higher than the Supply Inspector who had submitted the preliminary report. The role of enquiry could not permitted to be delegated to an authority who himself was responsible to complain, therefore, failure on the part of the prescribed authority to hold a fair enquiry by itself is writ large. The appellate authority despite summoning the relevant record has failed to consider the relevant aspects of the matter and affirmation of the order passed by the prescribed authority has proceeded on surmises and conjectures. The failure on the part of appellate authority, therefore, is equally faulty and calls for interference.
In view of what has been discussed above, the impugned order of cancellation of fair price shop licence passed on 26.2.2018 as well as the appellate order dated 5.9.2019 deserve to be set aside and are accordingly set aside. The fair price shop licence of the petitioner as well as the supply of food grains shall be restored forthwith.
The writ petition is allowed with no order as to cost.
Order Date :- 29.1.2021 Fahim/-