Md. Jamruddin v. The State Of Bihar

.... .... Respondent/s ====================================================== Appearance : (In CWJC No.3537 of 2013) For the Petitioner/s : Mr. Rajeev Kumar Labh For the Respondent/s : Mr. R.K.Choubey, S.C. 8 (In CWJC No.3625 of 2013) For the Petitioner/s : Mr. Rajeev Kumar Labh For the Respondent/s : Mr. R.K.Choubey, S.C. 8 (In CWJC No.3540 of 2013) For the Petitioner/s : Mr. Rajeev Kumar Labh Patna High Court CWJC No.3537 of 2013 (3) dt.12-03-2013 For the Respondent/s : Mr. R.K.Choubey, S.C. 8 ====================================================== CORAM: HONOURABLE MR. JUSTICE JAYANANDAN SINGH ORAL ORDER 3 12-03-2013 In view of the order dated 4.2.2013 passed by a Division Bench presided over by Hon’ble the Chief Justice in L.P.A. No.15 of 2011, these cases have to be allowed in similar manner. Impugned orders, as contained in Annexure-1 in all the writ applications, show that in C.W.J.C.No.3537 of 2013 and C.W.J.C.No.3625 of 2013 PDS licence of the petitioners were suspended on 30.3.2010 and in C.W.J.C.No.3540 of 2013 PDS Licence was cancelled on 13.9.2010 and show cause were asked from them. Petitioners submitted their show cause with a prayer to release their licences from suspension which were forwarded to the District Level Selection Committee. The Committee held its meeting on 12.11.2011 and in the light of irregularities committed by the dealers it did not find it appropriate to withdraw the suspension. Hence, the matter was remitted back to the Licensing Authority to take appropriate action. In view of this resolution of the District Level Selection Committee, the Licensing Authority has found that he was left with no option but to cancel the licences which he cancelled. In this respect, following observations of the Division Patna High Court CWJC No.3537 of 2013 (3) dt.12-03-2013 holds the field : during (i) pendency “In our opinion, the power to suspend or cancel the licence conferred by Sub-clause (ii) of Clause 7 of the 2007 Order is akin to power to cancel or suspend licence under Sub-clause (1) of Clause 11 of the 1984 Order. The 1984 Order has been subject of consideration by this Court time and again. As early as in 1989 in the matter of M/s Swami Distributors v. State of Bihar, {1990 (1) PLJR 210}, a Division Bench of this Court had occasion to consider the provision of the 1984 Order. The Bench held the power of suspension conferred by Clause 11 of the 1984 Order was service to one under jurisprudence; suspension by way of punishment and (ii) suspension pending enquiry and/or contemplated enquiry. The Court held, “… it provides two kinds of suspension, namely, one under clause 11(1) i.e. suspension by way of punishment, and under clause 11(2), suspension contemplation of a proceeding for cancellation of licence. The second kind of suspension, is an interim suspension with a life of ninety days.” judgment has been followed The aforesaid consistently and has become settled law. In the matter of M/s. Sukhwinder Pal Bipan Kumar and others v. State of Punjab and others (supra), a similar licensing Order prevalent in the State of Punjab was under consideration by the Hon’ble Supreme Court. The Hon’ble Court upheld the legality of second proviso of sub-clause (1) of Clause 11 of that Order that empowered the licence licensing authority, “to suspend a without giving a reasonable opportunity to a licensee of stating his case for a period not exceeding 90 days during the pendency or in contemplation of proceeding for cancellation of his licence.” In the matter of Thakko Choudhary (supra), a Bench of this Court while considering a similar provision under Section 42 of the Bihar and Orissa Excise Act, 1915 held that Section 42 empowers the prescribed authority to cancel or to suspend a licence. Once the authority has decided to suspend the licence the Collector or Patna High Court CWJC No.3537 of 2013 (3) dt.12-03-2013 by way of punishment under Clause 7(ii) of the 2007 Order, he cannot proceed further to cancel the licence as no one can be punished twice for the same act of misconduct or offence. This construction is fortified by sub-clause (iv) which requires the licensing authority to ask show cause before suspending licence. Sub-clause (v) thereof restricts the power of suspension to a maximum period of 90 days. It may be revoked earlier if the selection committee so recommends.” In view of the authoritative pronouncement of the Division Bench, this Court has no option but to hold that once petitioners’ licences were suspended and the suspension continued for ninety days (maximum period prescribed for suspension of licence), their licences could not cancelled. Having suffered some punishment for the charges, petitioners could not be imposed with another punishment for the same charges and same allegations. Accordingly, the impugned orders of the Sub- Divisional Officer, West, Muzaffarpur dated 21.1.2012, as contained in Annexure-1 in all the three writ applications, are quashed. Licenses of the petitioners shall stand revived with consequential entitlement for resumption of supply of food grains as per the terms of licence. Pradeep/- (Jayanandan Singh, J)