Shailendra Singh v. The State Of Bihar Through Principle Secretary Food And Civil Supplies Bihar, Patna

Mr. A.K. Dubey, AC to AAG 4 2 07-03-2013 Heard learned counsel for the petitioner and the State. Through this writ application the petitioner seeks quashing of the order dated 20th of September, 2011(Annexure 3) passed by the Sub Divisional Officer-cum-licensing authority, Kharagpur, by which his licence no. 26/2007 granted for running a PDS shop has been cancelled under the provisions contained in Public Distribution System (Control) Order, 2001 (hereinafter to be referred to as “Control Order”) vide the amendment brought in 2011, particularly in Clauses 7(i)(b) and (e) and 7(ii). It has been disclosed in the impugned order that upon the

basis of one statement of the petitioner himself a first information report was lodged against the petitioner, the dealer Arvind Kumar Patna High Court CWJC No.21889 of 2011 (2) dt.07-03-2013 2 and the Assistant Manager, Godown, namely, Ranveer Singh, being Kharagpur Police Station Case No. 198 of 2011. Learned counsel for the petitioner has raised a question that the entire proceeding would be in teeth of the statutory provision as well as the law laid down by this Court as well as the Apex Court on several occasions that without granting reasonable opportunity to the concerned person such a punitive action cannot be taken as that would be in violation of the time tested and well known principle of Natural Justice. Learned counsel has submitted that even a show-cause notice for proposed cancellation was not issued by the authority and on the basis of some statement given by him against the aforesaid Arvind Kumar and Ranveer Singh, his licence has been cancelled without following even the .procedures laid down in the Control Order.

A counter affidavit has been filed on behalf of the respondent nos. 3, 4, 5 and 6 defending the impugned order. However, nothing has been stated regarding initiation of any proceeding by issuance of show-cause notice or granting reasonable opportunity to the petitioner for presenting his case in the matter. However, learned counsel for the State has vehemently argued at the time of hearing of this application that in view of the allegation having been admitted by the petitioner in his statement Patna High Court CWJC No.21889 of 2011 (2) dt.07-03-2013 3 upon which the first information report was lodged, there was no occasion for compliance of the principle of Natural Justice and, thus, a final order could have been passed by the authority concerned without giving any show cause notice. In support of his aforesaid submission, learned counsel has placed reliance upon two decisions of the Apex Court.

Learned counsel has, in particular, referred paragraph 22 of the decision of the Apex Court rendered in Viveka Nand Sethi v. Chairman, J & K Bank Ltd. & ors. (2005(3) Patna Law Journal Reports(Supreme Court), 55). The Apex Court in the aforesaid decision has observed that the principle of Natural Justice, it is trite, is no unruly horse. When facts are admitted, an enquiry would be empty formality. It has been further held that the principles of Natural Justice are required to be complied with having regard to the factual situation obtained in a particular case. It cannot be put in a straitjacket formula. It cannot be applied in a vacuum without reference to the relevant facts and circumstances of the case. In another decision of the Hon’ble Supreme Court rendered in Raj Kumar Soni and another v. State of U.P. and another (2007(3) Patna Law Journal Reports (Supreme Court), 84), a passage from the decision rendered in M.C. Mehta v.

Union of India (AIR 1999 Supreme Court, 2583) has been quoted in paragraph 19 which is Patna High Court CWJC No.21889 of 2011 (2) dt.07-03-2013 4 to the effect that the Court under Article 32 or Article 226 of the Constitution may refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, which is otherwise not in accordance with law. The aforesaid limb of argument advanced on behalf of the State is noted only to be rejected inasmuch as none of the aforesaid decisions, in my considered opinion, would be applicable in the present case. In Viveka Nand Sethi (supra) the Apex Court has observed that no straitjacket formula can be laid down for violation of the principle of Natural Justice. It cannot be applied in vacuum and the principles of Natural Justice are required to be complied having regard to the factual situation.

However, in the present case, the relevant Statute itself lays down under Clause 7(ii) of the Control Order that reasonable opportunity should be given to the petitioner for making out his case prior to cancellation of the licence. From plain reading of the statement of the petitioner, appended as Annexure 3, it appears that he has made certain allegations against some persons for supplying the articles either of lesser weight or after charging excess amount. That, in no manner, can be presumed as his admission of any guilt and any Patna High Court CWJC No.21889 of 2011 (2) dt.07-03-2013 5 punitive action could not have been taken only on that basis without following the procedures. Secondly, in one of the aforesaid decisions the Supreme Court was considering as to whether enquiry in the interest of Natural Justice would be necessary or not. In the present case even the charges have not been framed as no show-cause notice was given to the petitioner then question of necessary enquiry would be meaningless.

In M/s Umesh Chandra Dinesh Kumar v. State of Bihar and others (1999(1) B.L.J., 548) a Division Bench of this Court has held that if any action or order of an authority is going to visit a civil consequence upon a person then it would be mandatory to issue a show-cause notice upon him and, thereafter, consideration of the cause shown by the licensee or the person concerned would also be necessary and if the reply to the show- cause notice is being rejected then the reasons, though not in elaborate, for doing that must be recorded in the order. In view of the provisions as contained in Clause 7(ii) of the Control Order itself and the decision of this Court in M/s Umesh Chandra Dinesh Kumar (supra) as also several other decisions rendered by this Court, issuance of a show cause notice and consideration of the reply thereto would be mandatory. Thus, the aforesaid stand of the State appears to be unreasonable and Patna High Court CWJC No.21889 of 2011 (2) dt.07-03-2013 6 unfair.