Allahabad High Court
Sarfaraj Khan vs State Of U.P Thru Secy Food & Civil Supply ... on 6 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved On:- 27.09.2019 Pronounced On:- 04.11.2019 Court No. - 18 Case :- MISC. SINGLE No. - 26804 of 2017 Petitioner :- Sarfaraj Khan Respondent :- State Of U.P Thru Secy Food & Civil Supply Lko & Ors Counsel for Petitioner :- Satish Kumar Sharma,Awanish Kumar Bhatt Counsel for Respondent :- C.S.C Hon'ble Ved Prakash Vaish, J.
1. Heard Sri Satish Kumar Sharma, learned counsel for the petitioner and Sri Sunil Bajpai, learned Additional Chief Standing Counsel for the respondents.
2. By way of the present petition, the petitioner seeks quashing of the order dated 18th September, 2017 passed by Joint Commissioner (Food), Lucknow Division, Lucknow as well as order dated 18th March, 2017 passed by the U.P. Ziladhikari Nighasan, District-Kheri, whereby the license of the petitioner of the fair price shop was canceled.
3. Brief facts as set out in the present case are that the petitioner was the licensee of the fair price shop in village panchayat Khamariya Koilar, Vikas Khand and Tahsil Nighasan, District-Kheri, he runs the fair price shop of the village panchayat for the last several years and there was neither any complaint in respect of the irregularities in distribution of the essential commodities to the cardholders, nor any complaint in respect of the black marketing was made against him.
4. It is stated that the petitioner distributed the essential commodities to the cardholders each and every month in presence of the Supervisor, and when the Supervisor verified the same, then next month quota was lifted, so there is no illegality in distribution of the essential commodities.
5. On 12th September, 2016, Sri Anil Prakash Shukla, Revenue Inspector/ Supervising Authority of the concerned Tahsil informed the Ziladhikari Nighasan that the date of distribution of the fair price shop was fixed on 9th and 10th of September, 2016 and when he reached at the shop of the petitioner on 9th September, 2016, the petitioner stated that it was Friday/Jumma so he will not distribute the commodities. On the next day i.e., on 10th September, 2016, when the Revenue Inspector visited the shop of the petitioner, he was informed that the petitioner had gone in Nighasan, and therefore, the commodities were not distributed.
6. On 12th September, 2016 when the Revenue Inspector reached at the shop of the petitioner, it was informed that all the articles had been distributed on 11th September, 2016. However, the customers informed that the petitioner had not distributed the articles. Complaints were made against the petitioner that he either did not distribute the articles or the articles distributed were of less quantity and at a higher rate. Statements of 48 card holders were recorded.
7. Vide order dated 13th October, 2016, the Sub-Divisional Magistrate stated that in view of the statements of the card holders and the inspection, the petitioner violated the Government Order. A show cause notice dated 13th October, 2016 was issued to the petitioner and the petitioner was directed to file reply within one week and to present before authority. The petitioner duly replied the show cause notice on 17th November, 2016. Another notice dated 3rd December, 2016 was given to the petitioner and it was directed to the petitioner to file reply within three days, notice was received by the petitioner on 16.12.2016 but the petitioner did not reply the same.
8. Vide order dated 18th March, 2017, the Sub-Divisional Magistrate (S.D.M.), Nighasan, District- Kheri canceled the license of the petitioner. The petitioner filed an appeal against the said order of the Sub-Divisional Magistrate before the Joint Commissioner (Food) which was dismissed vide order dated 18th September, 2017 which is impugned in the present petition.
9. Counter affidavit has been filed by respondent no.3, in which he denied the allegations made in the writ petition.
10. Learned counsel for the petitioner urged that the impugned orders passed by Joint Commissioner (Food) and the Sub-Divisional Magistrate are totally illegal, unjust and improper and have been passed without application of mind and thus deserve to be set aside.
11. It was also contended by learned counsel for the petitioner that the impugned orders are non-speaking orders and the same have been passed without perusing the reply and relevant documents on record. It was further contended that with the charge-sheet no documents were provided to the petitioner and the impugned orders were passed in violation of the principles of natural justice without affording proper opportunity to the petitioner. In support of his submission, learned counsel for the petitioner relied upon the judgments passed by this Court in the case of 'Ram Kripal Yadav vs. State of U.P. and Ors.', (Writ Petition No.4011(M/s) of 2010) decided on 05.05.2011; 'Nurjahan vs. State of U.P. through Secretary (Food), Lucknow & Ors.', (Misc. Single No.3172 of 2017) decided on 06.09.2018; 'Jai Ram Verma vs. State of State of U.P. through Commissioner, Lucknow & 2 Ors.', (Misc. Single No.5746 of 2007) decided on 13.05.2010; 'M/s Mahatma Gandhi Upbhogta Sahkari Samiti vs. State of U.P. & Ors.' reported as 2001 (19) LCD 513.
12. It was further contended by learned counsel for the petitioner that no notice was served on the petitioner and when the petitioner came to know, he filed reply dated 17th November, 2016. The respondents without suspending the shop of the petitioner issued the charge-sheet and without considering the detailed reply of the petitioner, on the basis of the charge-sheet canceled the license of the petitioner. It was also contended that the impugned order was passed under political pressure.
13. Learned counsel for the petitioner further contended that the petitioner had distributed the entire food grains and kerosene oil and sugar on 11th September, 2016. It was further argued that U.P. Ziladhikari Nighasan was satisfied with the reply of the petitioner, but the Village Pradhan, who kept personal enmity with the petitioner got made a false complaint from Ms. Kusma Devi.
14. Lastly, learned counsel for the petitioner contended that the respondents also violated the Government Order dated 29th July, 2004 which clearly mentioned that there was no rule to issue the last notice. However, despite that the respondents issued another notice after submitting the reply dated 17th November, 2016 which is in violation of the Government Order.
15. On the other hand, learned counsel for the respondents contended that the there were irregularities in the distribution of the essential commodities. Thus, vide letter dated 12th September, 2016, Sri Anil Prakash Shukla, Revenue Inspector (Supervising Authority), Tehsil Nighasan informed respondent no.3 that the dates of distribution of commodities of fair price shop of village panchayat Khamariya Koilar, Vikas Khand and Tahsil Nighasan, District-Kheri of which the petitioner was a license holder was fixed on 9th September, 2016. However, when the Supervising Authority reached the fair price shop on 9th September, 2016, the petitioner stated that today is a friday/Jumma so the distribution work would not be done. The officer concerned visited the shop on the next fixed day i.e., on 10th September, 2016. On that day also, the petitioner was not present at the shop.
16. It was further stated that when the Supervising Authority visited the shop again on 12th September, 2016, the petitioner told him that he has already distributed the commodities to the card holders (total 635 card holders) on 11th September, 2016 whereas it was not possible to make distribution to major number of card holders in one day. It was also stated on behalf of the respondents that the Revenue Inspector went on the spot in village and taken the statement of the card holders. Many card holders have lodged the complaint that the distribution of the commodities for the month of September, 2016 was made by the petitioner either on less quantity than the allotted quantity or on higher prices. Many card holders complained that distribution of kerosene oil was not made to them.
17. It was stated on behalf of the respondents that on the complaints of card holders, a charge-sheet was prepared against the petitioner and along with photocopies of the statements, the same was sent to the petitioner on 13th October, 2016 which was duly received by the petitioner on 18th October, 2016 and he submitted his reply on 17th November, 2016. It is argued by the respondents that the petitioner did not submit any evidence against the charges leveled and again a notice was sent to the petitioner on 3rd December, 2016 which was received by him on 16th December, 2016 but no reply was given by the petitioner within the stipulated time.
18. It was also submitted on behalf of the respondents that after perusing the records, the respondents passed a detailed order dated 18th March, 2017 against the petitioner, canceling the license of the fair price shop. The petitioner preferred an appeal against the said order which was also dismissed. While denying the arguments of the petitioner, learned counsel for the respondents contended that photocopy of the charge sheet along with statements was received by the petitioner on 18th October, 2016 as is evident from receiving of the petitioner as contained in Annexure No.C-2 annexed with the counter affidavit.
19. Learned counsel for the respondents while placing reliance on the judgments of this Court in the case of 'Sheo Bhan Singh vs. State of U.P. and Ors.', 2018(140) R.D. 277 and 'Smt. Meena Devi vs. State of U.P. and Ors.', 2018(10) ADJ 385, has contended that there is no infirmity or illegality in the orders passed by the respondent authorities and the writ petition deserves dismissal.
20. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and also gone through the material available on record.
21. The Revenue Inspector/ Supervising Authority, Sri Anil Prakash Shukla fixed 9th and 10th September, 2016 and the dates for distribution of commodities of fair price shop of village panchayat Khamariya Koilar, Vikas Khand and Tahsil Nighasan, District-Kheri of which the petitioner was the license holder. This is so done as irregularities were reported to be done by the petitioner in distribution of essential commodities. When Sri Anil Prakash Shukla visited the shop of the petitioner on 09th September, 2016, the petitioner did not distribute the essential commodities and stated that it was a day of Jumma (Friday) so the essential commodities could not be distributed. When the Supervising Authority, Sri Anil Prakash Shukla visited on the next date i.e. on 10th September, 2016, the petitioner was not present. When the Supervising Authority visited the shop of the petitioner again i.e. on 12th September, 2016, the petitioner told him that he has already distributed the commodities to the card holders yesterday i.e. on 11th September, 2016. A doubt is certainly created that it was not possible to make distribution to major number of card holders i.e. about 635 in number in one day.
22. On 29th September, 2016, the Supply Inspector went on the spot in the village and take statements of the card holders. Many card holders have lodged the complaints that the distribution of commodities in the month of September, 2016 was made by the petitioner on higher rate and less quantity than the alloted quantity. Many card holders lodged complaints that the distribution of kerosene oil was not made to them. A charge-sheet was prepared against the petitioner along with photocopies of the statements and it sent to the petitioner on 13th September 2016 and the petitioner filed reply of the same on 17th November, 2016.
23. A perusal of the records clearly reveals that the petitioner did not submit any evidence against the charges leveled against him. The respondents again sent notice to the petitioner on 03rd December, 2016 and the petitioner duly received the same on 18th December, 2016 but failed to submit any reply thereto within the stipulated time. Consequently, the respondents on the basis of the available records, passed a detailed order dated 18th March, 2017 canceling the license of the fair price shop of the petitioner and confiscating the security deposit amount. The petitioner duly filed an appeal against the order dated 18th March, 2017 which was also dismissed by the Appellate Authority vide order dated 18th September, 2017.
24. A perusal of the records shows that the fair price shop of the petitioner had also been suspended earlier by order dated 5th December, 2009 against the irregularities committed by the petitioner in distribution of the essential commodities and after giving the last opportunity it was restored on 5th December, 2010.
25. I do not find any force in the arguments of the petitioner that copy of the charge-sheet along with documents was not supplied to him. Photocopies of the charge-sheet along with statements of the card holders was duly received by the petitioner on 18th October, 2016 as is evident from a perusal of the receipt of the charge-sheet annexed with the counter affidavit. The petitioner also duly submitted his reply to the charge-sheet on 17th November, 2016.
26. The petitioner already received commodities for the month of September, 2016. The petitioner had done distribution of the commodities in one day i.e., on 11th September, 2016 to all the 635 cardholders, which to my mind, is not possible. The contention of the petitioner that due to enmity with Village Pradhan, he was falsely implicated. I do not find any merit as the petitioner has not produced an iota of evidence to defend himself in this regard.
27. The petitioner has taken a stand that the respondents have violated the Government Order dated 29th July, 2004. The Government Order dated 29th July, 2004 was issued regarding the procedure adopted for cancellation/ suspension of Fair Price Shops in rural and urban areas. Paragraphs no.4 and 5 of the said Government Order contemplate inquiry before the license/ agreement of a Fair Price Shop is canceled. It also provides for an opportunity of hearing before passing the order of cancellation. The said Government Order has been relied upon by the two Co-ordinate Benches of this Court in holding that an opportunity of hearing is must and the procedure prescribed for suspension/ cancellation should be followed to the latter. The Government Order dated 29th July, 2004 relates to the procedure to be followed for cancellation/ suspension of a Fair Price Shop license has to be taken by the Licensing Authority, it should not be done only on the basis of the complaints received from some persons. The Order states that if a complain is received, then, a preliminary fact finding inquiry should be conducted and if it is found in the preliminary fact finding inquiry that a prima facie case is made out against the licensee which may lead to a valid conclusion of the mis-conduct, complaint of which is of such grave nature that may lead to cancellation of Fair Price Shop license, then only, suspension order be passed which should be a reasoned and speaking suspension order and should contain all the facts come out in the preliminary fact finding inquiry so that licensee can have an opportunity to rebut the prima facie conclusion arrived at on the basis of such preliminary fact finding inquiry.
28. The aforesaid Government Order also says that the Licensing Authority may suspend the Fair Price Shop license of a licensee also on the basis of spot inspection/ surprise inspection carried out of the shop concerned, if some grave irregularity comes to light during such surprise inspection or if it is found that licensee is indulging in an offense of selling the scheduled commodities illegally or black marketing as described in Essential Commodities Act, 1955 or Orders issued from time to time in this regard. In case of such suspension also the order that has to be passed by the Licensing Authority should be a reasoned and speaking order making apparent the grave irregularities found in the said spot inspection. The order also provides therein that in case of suspension/ cancellation of the fair price shop, the ration cards of the said shop should be attached to some other shops either of the same village or nearby village, so as to avoid any difficulty being faced by the ration card holders and the inquiry that has to be conducted after such suspension should be tried to be concluded within one month and the final orders that have to be passed, should be passed on the basis of explanation submitted by the licensee and, in case, it is found that the licensee is unduly causing delay in submitting his reply and has not submitted any reply at all, then, the Licensing Authority may pass cancellation order taking into account all the facts mentioned in the preliminary fact finding inquiry. The orders so passed should also be reasoned and speaking order.
29. In paragraph-6 of the Government Order dated 29th July, 2004, it has been specifically mentioned that in passing a final order of punishment, the graveness of the misconduct, complained of should be taken into account as also the past conduct of the licensee concerned to determine the quantum of the punishment and cancellation order should not be passed without application of mind to the gravity of the misconduct complained of.
30. In the present case, it is not disputed by the petitioner that the charge-sheet was served on him and he duly replied the same. The notice dated 3rd December, 2016 was also served on him to which he did not send any reply. The petitioner was duly served with the charge-sheet along with statements of the card holders and also notice dated 3rd December, 2016. The petitioner duly replied to the charge-sheet, but failed to produce any evidence to support his claim. Therefore, the Licensing Authority passed an order of cancelling the license of the petitioner.
31. The petitioner was found guilty of irregularities in distribution of essential commodities such as supply of less quantity, higher rate and non-supply to many card holders. Many card holders also lodged complaints that the distribution of kerosene oil was not made to them. A perusal of the order dated 18th March, 2017 clearly reveals that on 20th September, 2016 certain card holders complained regarding non-distribution of essential commodities to them. About 48 card holders made statements/ complaints against the petitioner regarding non-supply or the short supply of essential commodities to them. The petitioner was served charge-sheet alongwith statements of the card holders on 18th October, 2016 and the petitioner submitted his reply on 17th November, 2016. Spot inspection was done by the Supervising Authority and found irregularities in supply of the Essential Commodities. After perusing the record and hearing the petitioner, a detailed and reasoned order was passed by the Sub-Divisional Magistrate on 18th March, 2017 canceling the license of the petitioner. The Appellate Authority also considered the material available and held that the petitioner failed to produce any evidence against the charges leveled against him and dismissed the appeal while upholding the order dated 18th March, 2017. I do not find any perversity in the appreciation of the material available before the authorities while passing the order for cancellation.
32. While relying on the judgments as referred to herein above, learned counsel for the petitioner contended that non-reasoned and non-speaking orders were passed which amounts to violation of principles of natural justice and arbitrarily exercise of powers. I have perused the judgments relied upon by learned counsel for the petitioner and I am of the opinion that the same are not applicable to the facts and circumstances of the present case.
33. It is a settled law that the principles of natural justice are not embodied rules and not straight jacket formula to be applied in every case indiscriminately. The principles of natural justice are not capable of precised definition and vary inapplicability of facts and circumstance of each case. The underlying principles of natural justice involved under common law is to check arbitrariness, inaction and these principles imply only a duty to act fairly. The Hon'ble Supreme Court in the Case of 'A.S. Motors Private Limited vs. Union of India & Ors.' 2013 (10) SCC 114 has observed that applicability of principles of natural justice is contextual to the nature of dispute.
34. While considering the principles of Audi Alteram Partem, the Supreme Court in the Case of 'Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd. Haldia and Ors.', (2005) 7 SCC 764, held as under:-
"44. We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten forbidden fruit. (See R. v. University of Cambridge). But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straightjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated; " 'To do a great right' after all, it is permissible sometimes 'to do a little wrong' ". [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India (Bhopal Gas Disaster), SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than "precedential"."
35. The principles of natural justice must be read into the unoccupied in the intricacies of the statutes unless there is a clear mandate to the contrary. In this regard, reference is made to the case reported as 'Institute of Chartered Accountants of India v. L.K. Ratna and Ors', (1986) 4 SCC 537 (Para16) and 'K.I. Shephard & Ors. v. Union of India and Ors.', AIR 1988 SC 686 (Paras 12, 13, 15 and 16). The Hon'ble Supreme Court has held, briefly stated natural justice means fair play in action and relevance of natural justice depends upon the facts of each case. Therefore, in judging the validity of an order when the complaint is about non-compliance with the principles of natural justice, in cases where the attack is on the ground of bias, the distinction has to be withdrawn between the cases of ' no notice' or 'no hearing' and cases of 'no fair hearing' or 'no adequate hearing'. If the defect is of the former category, it may automatically make the order invalid but if the defect is of the latter category, it will have to be further examined whether the defect has resulted in prejudice and failure of justice and it is only that such a conclusion is reached that the order may be declared invalid. In this regard, reference can be made to the judgment in the case of 'State Bank of Patiala & Ors. v. S.K. Sharma', AIR 1996 SC 1669; 'Union of India and Anr. v. M/s Mustafa and Najibai Trading Co. & Ors.', AIR 1998 SC 2526.
36. I have gone through the order dated 18th March, 2017 passed by the Sub-Divisional Magistrate and order dated 18th September, 2017 passed by the Joint Commissioner (Food) which are well reasoned and call for no interference under Article 226 of the Constitution of India.
37. In the light of the aforesaid discussion, the writ petition is devoid of merit and is accordingly dismissed.
38. No order as to costs.
(Ved Prakash Vaish) Judge Order Date :- 04.11.2019 Shanu/-