Karnataka High Court
Shri Uday S/O Dharanendra Shankargoud vs The Deputy Commissioner on 9 November, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 9TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE SURAJ GOVINDARAJ
WRIT PETITION No.100366/2021 (GM-PDS)
BETWEEN:
1. SHRI UDAY S/O DHARANENDRA SHANKARGOUD
SECRETARY, VILLAGE COMMITTEE,
ALARWAD,
A SOCIETY REGISTERED UNDER THE KARNATAKA
SOCIETIES
REGISTRATION ACT 1960,
AGE 49 YEARS,
OCC. SECRETARY OF THE SAID SOCIETY WHICH IS
RUNNING FAIR PRICE SHOP NO.237,
R/O. HOUSE NO.185/90,
PATIL GALLI,
ALARWAD,
TALUK AND DISTRICT. BELAGAVI.
PIN CODE 590020.
...PETITIONER
(BY SHRI.SANJAY S.KATAGERI, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER
AND APPELLATE AUTHORITY,
BELAGAVI,
(UNDER PDS),
D C COMPOUND,
BELAGAVI,
PIN CODE 590002.
2. THE JOINT DIRECTOR
OF FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS
DEPARTMENT,
BELAGAVI,
D C COMPOUND,
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BELAGAVI,
PIN CODE 590002.
3. THE DEPUTY DIRECTOR
OF FOOD CIVIL SUPPLIES AND CONSUMER AFFAIRS
DEPARTMENT, BELAGAVI.
D C COMPOUND,
BELAGAVI,
PIN CODE 590002
..RESPONDENTS
(BY SHRI.V.S.KALASURMATH, HCGP FOR R1 TO R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN
THE NATURE OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT
OR ORDER OR DIRECTION, BY QUASHING THE IMPUGNED ORDER
DATED.10.04.2020 PASSED BY THE RESPONDENT NO.2 HEREIN,
AS PER ANNEXURE-E HEREIN AND AS CONFIRMED IN THE
IMPUGNED ORDER DATED.15-12-2020 IN APPEAL AS PASSED BY
THE RESPONDENT NO.1 AS PER ANNEXURE-K HEREIN DEPUTY
COMMISSIONER AND APPELLATE AUTHORITY, BELAGAVI (UNDER
PDS CONTROL ORDER) BY ALLOWING THIS WRIT PETITION BY
THIS HON'BLE COURT AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. The petitioner is before this Court seeking for the following reliefs:
(a) Issue a Writ in the Nature of Certiorari or any Other Appropriate Writ or Order or Direction, by Quashing the Impugned Order dated: 10-04-
2020 in passed by Respondent No.2 herein, as per Annexure- E herein and the as Confirmed in the Impugned Order dated: 15-12-2020 in Appeal passed by the Respondent No.1 as per Annexure-K herein - Deputy Commissioner and Appellate Authority, Belagavi (Under PDS Control Order) by allowing this Writ Petition by this Hon'ble Court.
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(b) Issue a Writ or Order or Direction in the Nature of Certiorari by quashing the said proceedings initiated by the Respondent No.2 herein dated 10.04.2020, as pending before him as per Annexure-D1 herein, by declaring that, the said Proceedings as pending before the Respondent No.2 herein - Joint Director of Food, Civil Supplies and Consumer Affairs Department, Belagavi are lapsed, in view of Deeming Clause as provided Under Proviso of Sub Clause (2) of Clause-12 of the Karnataka Essential Commodities Public Distribution System (Control) Order, 2016., as against the Petitioner herein, by allowing this Writ Petition.
2. Facts:
2.1. The petitioner is a Secretary of the Society registered under Karnataka Societies Registration Act, 1960, running a fair price shop at Alarwad village of Belgaum taluk.
The authorisation having been granted in the year 1993 has been renewed from time to time and was in force.
2.2. Respondent No.3 - the Assistant Director of Food and Civil Supplies had visited the premises on 10.04.2020 at about 7:30 a.m. :4: on account of certain complaints filed against the petitioner by the card holders of the said Society; that the petitioner was providing lesser commodities than that being the entitlement of such persons.
2.3. Respondent No.3 conducted an inspection, drew up a panchnama, recorded statement of certain card holders, that lesser food grains having been issued and on that basis suspended the authorisation of the petitioner and initiated an enquiry. 2.4. In view of no order having been passed within a period of 90 days, the petitioner had approached the Appellate Authority in terms of Clause 17, namely the Deputy Commissioner.
2.5. The Deputy Commissioner vide the impugned order dated 15.12.2020 upheld the :5: suspension on the basis of the enquiry report holding that the allegations against the petitioner are established and it is this order dated 15.12.2020 which is under challenge before this Court as also the suspension order dated 10.04.2020 at Annexure-E.
3. Shri Sanjay S.Katageri, learned counsel for the petitioner would submit that 3.1. All the allegations made against the petitioner are false inasmuch as the distribution of the grains can only be made on the biometric thumb impression being given by the concerned cardholders.
3.2. In the present case, the petitioner has distributed the entitlement of the each of the cardholders and the allegation made against the petitioner is only on account of the :6: enmity of such card holders and/or at the behest of the persons who are inimically opposed to the petitioner.
3.3. Though the licence of the petitioner was suspended on 10.04.2020 and a show cause notice was issued, no enquiry report had been submitted within a period of 90 days as required under clause 12 of the Karnataka Essential Commodities Public Distribution System Control Order, 2016, (for brevity referred to as "the Control Order, 2016), as such both the suspension order and the Order passed on appeal are required to be quashed.
4. Per Contra Shri V.S.Kalasurmath, learned High Court Government Pleader would submit that :7: 4.1. There are numerous complaints received against the petitioner which require a detailed enquiry to be conducted and that the suspension order was issued on 10.04.2020. 4.2. On account of prevailing Covid-19 pandemic, the enquiry could not be completed within a period of 90 days.
4.3. Immediate suspension order was required to be issued for the reason that during the Covid-19 pandemic, the petitioner was not releasing the required food grains to the cardholder thus causing immense harm and injury to the cardholders.
4.4. The delay in not completing the enquiry within 90 days will not negate the enquiry, a proper enquiry having been conducted. The said enquiry cannot be faulted with. There are statements which have been recorded by :8: the Enquiry Officer which indicate and establish the allegations made against the petitioner.
4.5. Subsequent to the appeal being dismissed, the petitioner had approached this Court and this Court wide order dated 09.03.2021 had granted interim stay and as such, the respondents could not carry out the further enquiry and it is only on 22.04.2021 in furtherance of the order of this Court, the enquiry could be continued and thereafter been completed and due to the interim order passed by this Court, no orders have been passed on the basis of the enquiry.
5. Heard Shri Sanjay S.Katageri, learned counsel for the petitioner and Shri V.S.Kalasurmath, learned High Court Government Pleader appearing for :9: respondent/State and Shri T.M.Nadaf, learnt counsel for the impleading applicants who adopts the arguments of the learned High Court Government Pleader.
6. The points that would fall for consideration of this Court are:
6.1. Whether the enquiry itself would be negated if the enquiry is not completed within a period of 90 days from the date of suspension as provided under the proviso to sub clause (2) of Clause 12 of the Control Order 2016?
6.2. Whether there is any infirmity in the order dated 15.12.2020 passed by the 1st respondent at Annexure-K?
6.3. What order?
7. Answer to Point No.1: Whether the enquiry itself would be negated if the enquiry is not completed within a period of 90 days from the date of suspension as provided under the proviso to sub clause (2) of Clause 12 of the Control Order 2016?: 10 :
8. Answer to Point No.2 : Whether there is any infirmity in the order dated 15.12.2020 passed by the 1st respondent at Annexure-K?
9. Both the above questions being related are considered together
10. Clause 12 of the Control Order, 2016, reads as under:
12. Contravention of Conditions of Authorization:
(1) No authorized dealer or agency under this order or his agent or servant or any other person acting on his behalf, shall contravene any of the terms of conditions of the authorization or the provisions of this order and if any such dealer or agency or his agent or servant or any other person acting on his behalf contravenes any of the said terms of conditions or provisions, then without prejudice to any other action that may be taken against him, his authorization may be cancelled by order in writing by the Authorized Authority in respect of one or more of the essential commodities covered by that authorization :
Provided that no order shall be made under this clause unless the authorized dealer or agency has been given a reasonable opportunity of being heard.
(2) If the Authorized Authority is satisfied that prima facie the conditions of the authorization or the provisions of this order are contravened, he may, notwithstanding anything in sub-clause (1), suspend the authorization pending enquiry for cancellation of authorization.
"Provided that the enquiry shall be completed within 90 days from the date of suspension of the shop and that in case of cancellation of the authorization of the Fair Price Shop, new authorization shall be issued within 60 days of cancellation".: 11 :
11. Sub clause (2) of Clause 12 provides for suspension of authorisation in the event of any of the provisions of the order being contravened. However, the proviso to sub clause (2) indicates that the enquiry shall be completed within a period of 90 days from the date of suspension of the shop. It is on this basis that Shri Sanjay S.Katageri, learned counsel has contended that the enquiry not having been completed until April, 2021 and the suspension order having been passed on 10.04.2020, there being a delay of nearly one year, the proviso to sub clause (2) of Clause 12 would come into operation thereby negating the enquiry report.
12. A perusal of sub clause (2) of Clause 12 as also the proviso thereto indicates that the same is a protection granted under the Control Order of 2016, requiring the enquiry to be completed in a particular time frame, more so when the : 12 : authorization granted is suspended so that, any authorized licensee is not put to harm or injury on account of the delay in the enquiry.
13. In that background I am unable to accept the submission of Shri. Katageri that if the enquiry report submitted beyond the period of 90 days, the enquiry report would be completely negated, at the most if the enquiry is not completed within the period of 90 days, the suspension order would come to an end permitting the authorized licensee to carry out its business and the State being required to supply the food grains required for the authorized licensee to conduct its business.
14. Though Shri. Katageri tried to draw reference and example by analogy to a charge-sheet not having been filed within a given time frame requiring grant of default bail in terms of Section 167 of the Cr.P.C., the same would also not come to the rescue of the Petitioner, in that if the charge-sheet : 13 : is not filed within a particular period of time, the accused would be entitled to default bail, the non- filing of the charge-sheet within the period prescribed would not negate the crime itself.
15. In the present case, there are serious allegations which have been made against the petitioner i.e.,
(i) the petitioner supplying lesser quantity than that being the eligibility of the card-holders, (ii) that the petitioner has misbehaved with the women card-holders allocated to the shop, (iii) the petitioner had misbehaved with other card-holders,
(iv) the petitioner had particularly supplied lesser quantity to three card-holders etc.,
16. These allegations were required to be enquired into by the enquiry officer the statements of the concerned person to be recorded. Though the state could have acted with alacrity and submitted its report at an earliest, I am of the considered opinion that the delay in enquiry being conducted : 14 : would not vitiate the proceedings initiated against the petitioner, the petitioner being entitled to question the enquiry report in accordance with law.
17. The 1st respondent - Deputy Commissioner as regards the appeal filed at Anenxure-K in the impugned order as though adverted to several facts has not adverted to the delay caused as also the applicability of the proviso to sub-clause 2 of clause 12.
18. Merely because the 3rd respondent Assistant Director in his inspection report dated 10.04.2020, referred to the various allegations made against the petitioner, the appeal which had been filed has been dismissed by the 1st respondent - Deputy Commissioner.
19. Admittedly, as on the date of the passing of the impugned order i.e., on 15.12.2020 the enquiry had not been completed, admittedly there was no : 15 : enquiry report before the Deputy Commissioner to come to any conclusion, the Deputy Commissioner has only relied upon the initial inspection report of the 3rd respondent dated 10.04.2020.
20. It was the duty of the 1st respondent to have called upon the enquiry officer to submit the enquiry report and consider the same as also the implication of proviso to sub-clause 2 of clause 12 of the Control Order, 2016 which has not been done, thereby there is a violation of principles of natural justice, inasmuch as the procedure proscribed has not been followed by the 1st respondent Deputy Commissioner.
21. Admittedly, the enquiry report has been submitted only in the month of April, 2021. In view thereof, I am of the considered view that, the impugned order at Annexure-K is not sustainable and as such, the order dated 15.12.2020 passed by the 1st : 16 : respondent at Annexure-K is required to be quashed.
22. I answer Point No.1 by holding that the enquiry itself would be negated if the enquiry is not completed within a period of 90 days from the date of suspension as provided under the proviso to sub clause (2) of Clause 12 of the Control Order 2016, the suspension order would automatically cease to be in operation on the expiry of 90 days from the date of suspension if the enquiry is not completed and report not submitted within 90 days of the suspension order.
23. I answer Point no.2 by holding that the order dated 15.12.2020 passed by the 1st respondent at Annexure-K is not sustainable.
24. Answer to Point No.3: What order? : 17 : 24.1. The order dated 15.12.2020 passed by the 1st respondent at Annexure-K hereby quashed. 24.2. The matter is remitted to the 1st respondent for fresh consideration by taking into consideration the various aspects pointed out above including the enquiry report, which is now ready.
24.3. The petitioner is at liberty to raise such issues as may be required to be raised as regards the said enquiry report and the proceedings. 24.4. Needless to say, that in view of the applicability of proviso to sub-clause 2 to clause 12 as referred to herein above, the suspension order came to an end on the expiry of 90 days of the suspension order dated 10.04.2020, the petitioner would therefore be entitled to continue to run its : 18 : authorized shop subject to the orders passed by the 1st respondent.
24.5. The respondents are also directed to supply necessary food grains to enable the petitioner to supply the food grains to the card-holders attached to the 1st respondent fair price shop. The petition stands allowed.
24.6. The 1st respondent Deputy Commissioner is directed to dispose of the appeal within a period of 60 days of the receipt of the certified copy of this order.
24.7. In view of the disposal of the above petition, the pending I.As. does not survive for consideration. Accordingly, the same are disposed of.
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JUDGE Jm-paragraphs 1 to 10, Svh-from paragraph 11 till end