Madhya Pradesh High Court
Dinendra Pandey vs The State Of Madhya Pradesh on 23 October, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:53152
1 WP-2202-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 23rd OF OCTOBER, 2024
WRIT PETITION No. 2202 of 2022
DINENDRA PANDEY
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vishnu Chandra Dwivedi - Advocate for petitioner.
Shri Prabhanshu Shukla - Govt. Advocate for respondents/State.
ORDER
This petition has been filed assailing the order dated 21.09.2021 passed by the respondent No.3-Sub-Divisional Officer, Churhat/Rampur Naikin District Sidhi whereby the petitioner was directed to be removed from the post of Salesman and recovery of amount in lieu of the shortage of food grains was directed to be imposed against him along with registration of a criminal case for the offence under Section 3 read with 7 of the Essential Commodities Act. The appeal preferred by the petitioner was also dismissed vide impugned dated 29.12.2021 passed by the respondent No.2-Collector Sidhi District Sidhi.
2. It is the case of the petitioner that at the relevant time, he was working as a Salesman on Government Fair Price Shop Mankisar, Tahsil Rampur Naikin, District Sidhi (M.P.). Certain allegations with respect to governing of a fair price shop and black-marketing of the food-grains have been alleged Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 2 WP-2202-2022 against the petitioner whereupon an enquiry was conducted against him in presence of the Sub-Divisional Officer. An enquiry report dated 05.06.2021 was submitted and on the basis whereof, an ex parte punishment order was passed against the petitioner on 21.09.2021, imposing three-folds punishment i.e. removal of petitioner from the post of Salesman, recovery of amount in lieu of shortage of food grains and registration of a criminal case for the offence under Section 3 read with 7 of the Essential Commodities Act alleging violation of the M.P. Public Distribution System (Control) Order 2015 in running the fair price shop and also black-marketing of food-grains.
3. It is the case of the petitioner that neither any show cause notice was issued nor any opportunity of hearing was given to him which is in clear violation of the relevant clause of the PDS (Control) Order 2015. It is further contended that the respondent No.3 i.e. SDO is not a competent authority to impose punishment against the petitioner as he himself was a member of the enquiry team. It is argued that no man is allowed to be a judge of his own cause because his interest would certainly be biased in the judgment. The petitioner came to know about passing of ex parte punishment order. He obtained copies of the entire proceedings and preferred an appeal before the respondent No.2-Collector Sidhi on various grounds. The appellate authority without considering the same has dismissed the appeal preferred by the petitioner vide impugned order dated 29.12.2021without due application of mind.
4. It is the case of the petitioner that he has never misappropriated the funds or blackmarketed the food-grains as alleged. He had distributed the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 3 WP-2202-2022 food-grains from time to time through POS machine which can be verified at any point of time. The complaint made by one Chhoti Sahu is not correct as she herself has given an affidavit that she has received the food-grains. She has further stated the Junior Supply Officer has taken her thumb impression over the plain paper, therefore, the allegations levelled against the petitioner is false and frivolous.
5. It is argued that the criminal proceedings under Section 3 read with 7 of the Essential Commodities Act prescribes punishment under Clause 16 of the PDS (Control) Order 2015 which provides for prosecution on the alleged default of the quantity more than 10% of the monthly allocation or repetition of such default. There is no such allegation against the petitioner. The prosecution can be directed in violation of Clause 16(2) of the Control Order 2015. However, as there is no violation of Clause 16 of the PDS (Control) Order 2015, no punishment could have been imposed against the petitioner. The petitioner's counsel has placed reliance upon the judgment passed by this Court in similar situation in the cases of Bal Kishan Sen vs State of M.P. and others : WP No.10772 of 2021 and Anwar Khan vs State of M.P. and others :
WP No. 7706 of 2022 decided on 22.07.2022. Attention has also been invited to the order passed by a coordinate Bench of this Court in the case of Nagendra Singh and another vs State of M.P. and others : WP No.9398 of 2021 decided on 17.08.2022. He has prayed for quashment of the impugned orders.
6. On being noticed, a reply has been filed by the respondents-authorities pointing out the fact that the petitioner has not approached this Court with Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 4 WP-2202-2022 clean hands. There is suppression of fact on the part of the petitioner. It is pointed out that the Junior Supply Officer issued a show cause notice on 17.06.2021 to the petitioner on which the petitioner has enclosed his signatures and has received the show cause notice on 25.06.2021 which is reflected from document (Annexure R/1). The petitioner has taken a specific stand that no show cause notice was issued to the petitioner is factually incorrect, therefore, it can safely be said that the petitioner has not approached this Court with clean hands. It is submitted that no relief could be granted to a person who has not approached the Court with clean hands in terms of the settled legal proposition of law by the Hon'ble Supreme Court in the case Avtar Singh v. Union of India reported in (2016) 8 SCC 471. It is further contended that by issuance of such show cause notice, an opportunity of hearing was granted to the petitioner but he has chosen not to avail the opportunity, therefore, the spot inspection was carried out by the enquiry team in which it was found that the petitioner has not followed Clauses 10, 11 & 16 of the PDS (Control) Order 2015. Therefore, it was recommended to take appropriate criminal action in terms of Section 3 read with 7 of the Essential Commodities Act. The documents pertaining to the same are filed as Annexure R/2 wherein statements of Chhoti Sahu and Dinendra Prasad Pandey was recorded. Panchanama was got prepared. It was observed that " व े ता का यवहार उिचत नह ं रहा है व जांच म पूण सहयोग नह ं रहा " meaning thereby the petitioner has not cooperated with the enquiry team. He himself has chosen not to appear before the enquiry proceedings, therefore, ex parte proceedings were carried out. The petitioner himself has challenged the order dated Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 5 WP-2202-2022 09.07.2021 before the respondent No.2 who has issued a show cause notice dated 08.06.2021 but again the petitioner has chosen not to appear before the Sub-Divisional Officer, thereafter, the authorities proceeded in the matter and final order was passed. Thus, it clearly goes to show that the petitioner himself has neither cooperated with the enquiry officer nor has chosen to appear before the authorities. Under these circumstances, the authorities were left with no other option except to pass the impugned order.
7. As far as the ground taken by the petitioner with respect to non-grant of opportunity of hearing is concerned, counsel for the respondents placed reliance upon the decision of the Division Bench of this Court in the case of Nagendra Singh (supra) decided on 30.09.2021 in support of his argument. He has prayed for dismissal of the writ petition.
8. Heard learned counsel for the parties and perused the record.
9. From the perusal of the record, it is seen that the order dated 21.09.2021 reflects that a show cause notice was issued to the petitioner (to which the petitioner has denied the same in terms of para 5.4 of the writ petition). Thereafter, ex parte proceedings were drawn against the petitioner. The respondents have placed on record the document as Annexure R/1 which reflects that the show cause notice dated 17.06.2021 was received by the petitioner on 25.06.2021. Therefore, the contentions made by the petitioner that the entire proceedings have been drawn up against him without issuance of any show cause notice or providing any opportunity of hearing is per se illegal are incorrect as the petitioner's signatures are appearing on the said document i.e. show cause notice, therefore, it is clear that the petitioner has Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 6 WP-2202-2022 not approached this Court with clean hands. After issuance of the said notice, there was no response from the petitioner. Thereafter, spot inspection was carried out. Panchanama to the said effect was prepared by the authorities which is reflected from the documents filed along with the return. The statements of the beneficiaries were recorded who have clearly stated against the petitioner. The following deficiencies were found as reflected from the panchanama :
पंचनामा हमस व पंचान यह त ीक करते है क दनांक 05.06.2021 को समय 1:00 pm बजे SDM चुरहट ारा शासक य उिचत मू य दक ु ान मनक सर क जांच क गई। जांच समय दक ु ान खुली पाया व व े ता ी दने पा डे य उप थत रहे ।
दयक स यापन िन न है ।
POS मे ा दयक अंतर
गहु 199.25 164.73 -34.53
चावल 18.14 00 -10.04
श कर 104 20 -84
नमक 423 250 -1.73
उपरो ानुसार गहु - 3453, चावल 18.14, श कर - 84 क ा, नमक -1.73 कम पाया गया।
व े ता ने कम दयक के संबंध म उिचत कारण नह ं बताया।
10. In pursuance to the deficiencies which were found while conducting the spot inspection, the final order was passed by the authorities on 21.09.2021. Based upon the spot inspection carried on 05.06.2021, the Sub Division Officer has issued show cause notice to the petitioner on 17.06.2021 which was received by the petitioner on 25.06.2021 but despite the same, no attempt was made by the petitioner to file reply to show cause notice. He himself has chosen not to appear before the authorities. Therefore, the authorities were left with no other option to pass the final order. Another notice was issued on 08.06.2021 from the office of Sub Divisional Officer pointing out as under :Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44
NEUTRAL CITATION NO. 2024:MPHC-JBP:53152
7 WP-2202-2022 दनांक 05.06.2021 को समय 01:00 अपरा ह पर किन आपूित अिधकार चुरहट/रामपुर नै कन मेरे साथ शास० उिचत मू य दक ु ान मनक सर का आक मक िनर ण कया गया एवं थल पंचनामा तैयार कर कथन िलया गया। िनर ण के दौरान िन निल खत अिनयिमतताएं पाई गई:-
1- िनर ण के दौरान शा० उिचत मू य दक ु ान मनक सर 1501088 सेवा सहकार सिमित बे दह ारा संचािलत क जा रह है । जांच समय दक ु ान खुली पाई गई एवं व े ता ी दने पा डे य उप थत पाये गये।
2. आरो/आर.ई.जी./462/1501088/02/2021/3 ट .सी. आर.ई.जी. एम.पी. 53 क ा. एवं न बर जीए-2036 आरो/आर.ई. ट .सी. आर.ई. /462-1501088- 02-2021-3 वाहन ० दनांक 09.02.2021 को जी/462/1501088/02/2021/3 30 नमक ट .सी. जी/462-1501088-02-2021-3 वाहन ० एम.पी. 53 जीए-
2036 दनांक 09.02.2021 को श कर 18 क ा. के संबंध म जांच क गई। इस संबंध म व े ता ारा बताया गया क उ ह प रवहनकता ारा साम ी माह-
अ ैल 2021 म द गई है , क तु उनके ारा दनांक 04.06.2021 को पी.ओ.एस. मशीन पर ाि दज कर ली गई है । इस संबंध म ओ रजनल बल व े ता के पास नह ं थे। ई.पी.जी.एस. पोटल से अवलोकन करने पर पाया गया क पी.ओ.एस. पर ाि दनांक 04.06.2021 को दज क गई है , जसके संबंध म व े ता का कथन िल पब कया गया है ।
3. शा० उिचत मू य दक ु ान के टॉक का मौके से स यापन कया गया जसके अनुसार गेहू 3453 कया. चावल 1814 क ा. व नमक 173 कया. श कर 84 क ा. कम पाया गया।
4- मौके पर उप थत उपभो ा छोट साहू पित शोभनाथ साहू सम आई. ड . 33013432 के बताया क 07 सद य पर 35 क ा. क पा ता पच जार है क तु व े ता ारा जनवर 2021 से जून तक क साम ी दाय नह ं कया।
पोटल से पु करने पर पाया क व े ता ारा साम ी का आहरण कया गया है । इस कार हत ाह को साम ी न दे कर अ यया उपयोग कया गया है ।
5- व े ता का यवहार सावजिनक वतरण णाली के अनु प नह ं पाया गया। उिचत मू य दक ु ान पर 20 उपभो ाओं के काड रखे पाये गये।
6- उिचत मू य दक ु ान पर पी.ओ.एस. मशीन, टॉक पंजी, बल बुक आ द नह ं पाया गया।
उपरो कारण से व े ता ारा म० ० सावजिनक वतरण णाली िनयं ण आदे श 2015 क क डका 10, 11 एवं 16 का उ लंघन कया जाना आव यक व तु अिधिनयम 1955 क धारा 3/7 के तहत द डनीय है ।
11. Despite the same, the petitioner has chosen not to appear before the authorities. Thereafter, the order dated 21.09.2021 was passed holding the petitioner guilty and directed for removal of the petitioner from the post of Salesman and further directed the authorities to initiate recovery of the defalcated amount from the petitioner and further to register a criminal case under Section 3 read with 7 of the Essential Commodities Act against him.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 8 WP-2202-2022 The appeal being filed by the petitioner against the punishment order dated 21.09.2021 was also dismissed vide order dated 29.12.2021.
12. Counsel for the petitioner has placed reliance upon certain judgments pointing out the fact that the procedure as provided under the PDS (Control) Order 2015 has not been complied with the authorities. However, Clause 16(2) thereof provides for as a mandatory registration of the FIR if the provisions contemplated under Clause 16(2) whereof are not complied with.
13. It is argued that the proceedings have been initiated by an incompetent authority i.e. Sub-Divisional Officer who was not having power to direct for removal of the petitioner from service for which reliance is placed upon Clause 13 of the PDS (Control) Order 2015. The aforesaid aspect was considered in the case of Dinendra Kumar Pandey vs Commissioner Rewa and Ors. : WP No. 19591 of 2015 decided on 11.11.2016 wherein it is held as follows :
"7. The petitioner has specifically pleaded in Para 1(iv) and Ground 6(G) that he was appointed on the post of Salesman by Sewa Sehkari Samiti. This contention is not denied by the respondents. This Court in Amrendra Singh (supra) held that the petitioner is an employee of Cooperative Society and Sub-Divisional Officer has no authority in law to remove the employee of said society. Reliance is placed on Clause 13 of Control Order, which reads as under:-
13. Power to give necessary directions.- The Commissioner, Collector and allotment authority/notified authority may issue directions under their competency to ensure the planned distribution of essential commodities under the public distribution system and the fair price shop/society/lead society are duty bound to follow the directions.
8. I have carefully gone through Clause 13 and other provisions, which are mentioned in the impugned order dated 31-01-2013 (Annexure-P/4). The said provisions Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 9 WP-2202-2022 do not provide any power of termination of a society employee to the Sub-Divisional Officer. In other words, the provisions on which reliance is placed do not give any power to the Sub-Divisional Officer to terminate the services of an employee of the society. Thus, the case of the petitioner is covered by the judgment of this Court in Amrendra Singh (supra). Resultantly, the impugned order dated 31-01-2013 (Annexure-P/4) is set aside. Respondents will be at liberty to take an appropriate action against the petitioner in accordance with law.
9. Petition is allowed. No cost."
14. In the present case, the impugned order dated 21.09.2021 has been passed by the respondent No.3-Sub-Divisional Officer who has directed for removal of the petitioner from the post of Salesman and for registration of a criminal case with a further direction to take appropriate steps for recovery of the amount causing loss to the authorities. Further, the question raised in the case of Nagendra Singh (supra) was considered by the Division Bench of this Court in reference which was decided on 30.09.2021 and it has been held as under :
"It is evident from the plain reading of Clause 16(2) of the Control Order, 2015 that in case of violation of its Clause 13 for quantity more than 10 percent of the monthly allocation or repetition of violation under the same clause, a person shall mandatorily be prosecuted under Section 7 of the Essential Commodities Act, 1955. Thus as far as the first part of question is concerned, if the deviation is more than 10 percent of monthly quota, no discretion is left with the competent authority except to order prosecution. But it would not be mandatory for the competent authority to direct prosecution, if the deviation is less than 10 percent of monthly quota, as in such cases, he may in his discretion impose any other penalty. In the facts of the present case, since finding of violation of various sub- clauses of Clauses 10 and 11 of the Control Order, 2015 has been recorded, the Collector may with reference to Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44 NEUTRAL CITATION NO. 2024:MPHC-JBP:53152 10 WP-2202-2022 sub-clause (8) of Clause 16 in his discretion direct prosecution but if the allegations are not very serious, he may instead impose any other suitable penalty."
15. From the perusal of the judgment, it is apparently clear that if quantity of loss is more than 10% of the monthly allocation or repetition of violation under the same clause then a direction for prosecution can be issued. In the present case, there is no finding recorded by the Sub-Divisional Officer pointing out the fact that deviation is more than 10% of the total allocation. Under these circumstances, no direction for registration of a criminal case could have been issued. Hence, the relevant provisions as contemplated under the PDS (Control) Order 2015 have not been followed by the authorities, therefore, the order dated 21.09.2021 passed by the Sub- Divisional Officer as well as the order dated 29.12.2021 passed by the Collector are unsustainable. The same are accordingly quashed.
16. I n above terms, the petition stands allowed and disposed of finally. However, the respondents-authorities are at liberty to initiate the proceedings against the petitioner from the stage of issuance of show cause notice to him in accordance with law and to complete the same within a period of 90 days from the date of receipt of certified copy of this order.
(VISHAL MISHRA) JUDGE VV Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 18-12-2024 18:20:44