Jharkhand High Court
Rajendra Paswan vs The State Of Jharkhand And Ors on 21 March, 2017
Equivalent citations: AIR 2017 JHARKHAND 123, 2017 (3) AJR 487, (2017) 4 JCR 348 (JHA), (2017) 3 JLJR 434
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 2160 of 2015
...
Rajendra Paswan ... Petitioner
-V e r s u s-
1. State of Jharkhand
2. Deputy Commissioner, Godda
3. Regional Development Officer,
Santhal Pragana Division, Dumka
4. The Sub-Divisional Officer, Godda ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE APARESH KUMAR SINGH
...
For the Petitioner : - M/s Lukesh Kumar, Adv.
For the Respondents : - Mr. Abhijeet Kr. Singh, JC to GP-V
...
04/21.03.2017Heard learned counsel for the petitioner and the State.
2. PDS license of the petitioner bearing no. 01 of 2002 for the village-Kumardiha, Panchayat-Lakarmara, Mehrama Division, Godda, Annexure-1 has been cancelled by the impugned order dated 10.02.2012, Annexure-6 passed by the respondent no. 4, Sub-Divisional Officer, Godda and affirmed in Misc. Appeal No. 26/2012-13 vide Appellate Order dated 02.03.2015 passed by the respondent no. 2, Deputy Commissioner, Godda also impugned herein, Annexure-7.
3. The license of the petitioner was suspended on 07.09.2011 and he was also asked to produce the stock and distribution register for the period February, 2011 to June, 2011 earlier by the letter dated 15.08.2011 followed by letter dated 07.09.2011 bearing Memo No. 807. He was also asked to furnish his show cause vide Memo No. 28 dated 06.01.2012, Annexure-4 issued by the respondent no. 4, Sub-Divisional Officer, Godda as to why action be not taken against him. The allegation interalia are as follows:-
(i) In the distribution register of foodgrains for the month February, 2011 under Antyoday scheme, name of one Suresh Thakur has been shown thrice at serial nos. 30, 27 and 43.
(ii) Foodgrains lifted in the month of March, 2011 and April, 2011 have been distributed in the month of April, 2011 and May, 2011 respectively.
(iii) There are no seal of the Godown Manager so far as the lifting of foodgrains in the month of May is concerned.
(iv) In the matter of distribution under the BPL Scheme made in May, 2011 for foodgrains lifted in April, 2011, name of only 102 BPL beneficiaries have been shown, while applications were made by 110 applicants. As such 2.80 quintal of foodgrains were distributed.
(v) In the distribution register of month February, 2011, name of the four persons, who made allegation, have not been shown.-2-
(vi) Similarly in the month of May, 2011, distribution register does not show the name of four persons, who made allegation under the BPL Scheme.
(vii) In the matter of distribution of kerosene oil, there has been repeated use of whitener by the petitioner in the distribution register, which also show change in the name and serial number of beneficiaries. Maintenance of distribution register appears to be forged.
4. Petitioner responded to the show cause notice on 18.01.2012, vide- Annexure-5. In relation to allegation no. 1, petitioner seems to have accepted the repetition of the name of Suresh Thakur as a mistake in the distribution register. In respect of lifting of foodgrains and distribution on the subsequent months also, he accepted the charges levelled in the show cause and submitted that the same has also occurred on account of lack of time given by the official members. Petitioner has also accepted the allegation contained in sub-para-3 as a mistake and sought to be excused. In respect of allegation no. 4, he contends that names of 8 BPL beneficiaries were attached to the Self Help Group, as such names of 102 beneficiaries were reflected in the distribution register for the month of May, 2011. He has taken a plea of illness of his daughter in respect of the errors reflected in the distribution register of BPL beneficiaries where name of four persons, who had made allegation, is not reflected. The same plea has been taken in respect of charge at serial no. 4 stating that he had lost his mental balance because of ill health of his daughter. In respect of the last allegation, the petitioner has contended that the use of whitener has not been resorted to with any fraudulent intention. They have happened on account of error in recording the names of the beneficiaries in the distribution register due to the fact that several beneficiaries turned up at one point of time for receiving the PDS items like kerosene oil.
5. The respondent no. 4, Licensing Authority has considered the plea of the petitioner to the allegations made and found it untenable on facts. He has also scrutinized distribution register containing the use of whitener spread over a period from January, 2011 to July, 2011. He has found use of whitener in all seven months, details of which are also furnished by way of a chart. The licensing Authority has also found that kerosene oil were distributed to the tune of 980 liters amongst 214 beneficiaries only and evidence of black marketing of 124 liters of kerosene oil was made out. Unsatisfied with the show cause of the petitioner and finding the charges to be established, license was cancelled. The -3- Appellate Authority by the impugned order dated 02.03.2015 has also confirmed the order of cancellation of license finding no infirmity in it. He has also taken note of the use of whitener on regular basis in the distribution register of kerosene oil for the period of seven months from January, 2011 to July, 2011.
6. Learned counsel for the petitioner has assailed the impugned order interalia on the ground that the impugned action was preceded by an enquiry by one Divisional Supply Officer upon direction of the Sub-Divisional Magistrate. That report of 12.07.2011, which contain the alleged irregularities, was not served upon the petitioner though it forms the basis of the entire allegation and the impugned action. Petitioner has, therefore, been denied proper opportunity to defend himself. He relied upon the judgment rendered by this Court in the case of Suresh Kumar Sao Vrs. State of Jharkhand reported in 2013(1) JLJR 209 and the judgment rendered by the Patna High Court in the case of Krishna Kumar Srivastava Vrs. The State of Bihar reported in 2013(3) PLJR 249.
7. Learned counsel for the petitioner has also taken the plea that the proceedings have been conducted under the Bihar Trade Articles (Licences Unification) Order, 1984, though Public Distribution System (Control) Order, 2001 had specifically overridden it. Reliance has also been placed upon a judgment dated 5.9.2012 rendered by the Co-ordinate Bench of this Court in the case of Aloke Dutta Versus State of Jharkhand in Cr. M. P. No. 56 of 2012. However, no such ground has been taken in the writ petition.
8. Respondents have defended the impugned order. Learned counsel for the State submits on the basis of averments made in the counter affidavit and on recitals of the allegation contained in the show cause, Annexure-4 and reply at Annexure-5 that petitioner had full notice of the allegation made against him. He has accepted the charges at serial nos. 1, 2 and 3 and sought to be excused. Apart from that he was asked to produce the entire distribution register in relation to the allegation contained at charge no. 7. Only after perusal of the distribution register and on finding instances of repeated irregularities by correction of figures through use of whitener, the Licensing Authority came to a conclusion that the petitioner has been resorting to unfair and irregular practices in the maintenance of Public Distribution Shop. He also came to a conclusion that maintenance of the distribution -4- register showed evidence of black marketing of kerosene oil. Therefore, the impugned order is wholly proper in the eye of law and on facts and has been passed after due notice and opportunity to the petitioner to defend himself. Non service of the enquiry report could not have made any difference as the charges as well as consideration of the show cause by the Licensing Authority show that the petitioner has not been prejudiced in absence thereof. Therefore, the impugned order may not be interfered in exercise of power of judicial review by this Court as the decision making process cannot be said to suffer from any infirmity.
9. I have considered the submissions of the counsel for the petitioner and the state and perused the relevant materials on records. I have also gone through the impugned order and the judgments relied upon by the parties. The forgoing discussions are ample testimony to the fact that the charges alleged against the petitioner are clear and specific. Petitioner cannot allege prejudice in the absence of furnishing of enquiry report as reply to his show cause also shows that each of the charges were fully understood and responded to by him. The charges in that sense are neither vague nor cryptic, rather exhaustive and contain the full description of the allegation. Moreover the Licensing Authority while considering the reply of the petitioner to the charges has taken into account the documents produced by the petitioner himself i.e. distribution register of kerosene oil for the period January, 2011 to July, 2011 which contains several instances of use of whitener in tampering with the entries made. The repeated instances of use of whitener in tampering with the records are enumerated in a chart for the entire seven months with description of the beneficiaries, serial nos. etc and the total supply made for that period. The order of the Licensing Authority also shows full application of mind to the content of the charges and reply submitted by the petitioner thereto. This Court in exercise of judicial review does not sit in Appeal on the findings recorded by the administrative/quashi judicial authority. It is the decision making process, which has to be scrutinized; whether they suffer from violation of principles of natural justice or non consideration of the relevant materials or that the order suffers from lack of reason or non application of mind. This Court does not find that impugned order suffers from any such errors of law or on facts. If the Licensing Authority has on a detailed consideration of the allegation and the reply furnished by the petitioner come to a -5- conclusive opinion about indiscriminate tampering relating to distribution of PDS items like kerosene oil and other charges, which petitioner has also accepted, the decision cannot be said to suffer from any illegality or lack of proper application of mind or is based on irrelevant grounds.
10. In such circumstances, reliance of the petitioner on the judgment rendered by this Court in the case of Suresh Kumar Sao (Supra) and the judgment rendered by the Patna High Court in the case of Krishna Kumar Srivastava (Supra) also does not come to his aid. In the case of Suresh Kumar Sao (Supra), it was found that the order of cancellation itself did not contain any reason though it relied upon the enquiry report of the Marketing Officer dated 13.03.2006 as also the subsequent report dated 13.06.2006, which were not served upon the petitioner. In that background and circumstances, the cancellation of the license was found to be in teeth of the principles of natural justice.
11. In the facts of the present case as noted herein-above, the exercise of jurisdiction by the Authority cannot be said to suffer from violation of principles of natural justice. The ground raised by the learned counsel for the petitioner relying upon the Public Distribution System (Control) Order, 2001 is a new ground urged at the time of the argument of this case which obviously has taken the respondent by surprise and no specific reply is also contained in the counter affidavit for that reason. However, it appears from perusal of Bihar Trade Articles (Licences Unification) Order, 1984 that it contains the provisions under Part-II; relating to licensing of dealers, issue and renewal of licence, power to refuse licence, consequences are laid down for contravention of conditions of licence such as suspension and cancellation of license also. It also contains provisions relating to maintenance of stocks and prices register and furnish of return etc. Part-IV thereafter also contains Miscellaneous provisions relating to power to call for information, power to issue direction to dealers and provisions of Appeal and Revision. Learned counsel for the petitioner has not been able to substantiate the aforesaid grounds, nor has placed any other subsequent Order notified by the Government of Jharkhand which has substituted the Bihar Trade Articles (Licenses Unification) Order 1984 containing detail provisions such as those enumerated herein above. In the case of Aloke Dutta Vrs. State of Jharkhand in Cr.M.P. No. 56 of 2012 the question involved was whether the Block Supply Officer had been authorized to make -6- search and seizure in terms of Clause 10 of the PDS (Control) Order 2001 upon which an F.I.R was lodged against the P.D.S. Dealer in relation to irregularities in the matter of distribution of P.D.S items to the beneficiaries of the P.D.S. The Hon'ble Court while dealing with the P.D.S.(control) Order, 2001 held that search and seizure made by the Block Supply Officer was illegal as he was not authorized by the State Government.
13. The instant case however relates to cancellation of the P.D.S license of the petitioner on the ground alleged and not in relation to any criminal case lodged against him after any search and seizure in an unauthorized manner. The aforesaid ground urged by learned counsel for the petitioner at the time of argument has therefore not been wholly substantiated. Therefore it does not merits acceptance.
14. On the totality of the facts and the circumstances and the reasons discussed hereinabove, this Court does not find any infirmity in the impugned order warranting interference. Accordingly, the writ petition is dismissed.
(Aparesh Kumar Singh, J.) Kamlesh/