Dilip Kumar Ghosh, aged 63 years, son of Late Suresh Chandra Ghosh .…… v. 1. The State of Jharkhand. 2. Deputy Commissioner-cum-District Magistrate, Ranchi having office at D.C
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.6298 of 2022 --------- Dilip Kumar Ghosh, aged 63 years, son of Late Suresh Chandra Ghosh .……… Petitioner Versus 1. The State of Jharkhand. 2. Deputy Commissioner-cum-District Magistrate, Ranchi having office at D.C. Office, Kutchery Road, P.O. G.P.O., P.S. Kotwali, District-Ranchi. 3. District Supply Officer, Ranchi, having office at D.C. Office, Kutchery Road, P.O. G.P.O., P.S. Kotwali, District-Ranchi. ……… Respondents CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD --------- For the Petitioner For the State : Mr. Nilesh Kumar, Advocate : Mr. Kishore Kr. Singh, SC-V 04/17.04.2023 --- The writ petition is under Article 226 of the Constitution of India for quashing of the order as contained in memo no.580 dated 27.05.2022 (Annexure-5) passed by the District Supply Officer, Ranchi, by which, the PDS licence of the writ petitioner bearing no.01/21 was cancelled as also the order passed in PDS Appeal Case No.2R28/2022-23 preferred on behalf of the petitioner, was dismissed on 20.09.2022. 2.
Legal Reasoning
The brief facts of the case as per the pleading made in the writ petition required to be enumerated which reads as under:-
Decision
It is the case of the writ petitioner that he is running his PDS shop vide licence no.01/21 without any complaint or allegation. On 12.04.2022, an inspection was conducted by the District Supply Officer and other officers of the department but on the said day, the shop of the petitioner was found closed though as per the order of the supply department, the PDS shop has to be opened 2 from 8:00 a.m. to 2:00 p.m. On finding the shop closed on that day, on 16.04.2022 vide memo no.513, the PDS licence of the petitioner has been suspended and it was informed that on the said day, the Secretary of Food and Civil Supplies Department supposed to inspect the PDS shop and other centre related with the supply and the shop of the petitioner was also selected, since, his shop was found closed, it was found that there is irregularity. Accordingly, PDS licence of the shop has been suspended and he was directed to give reply within one week. In the reply, the petitioner has informed the authorities, i.e., the District Supply Officer, Ranchi that on 12.04.2022 he was seriously ill and he visited the doctor. He has no information about the visit of any officer or any schedule of visit of the department. He is a patient of kidney disease and has been suffering from kidney failure for which on 12.04.2022 he visited hospital for dialysis. As soon as he got the information of the visit of the officers for inspection, his son immediately left the hospital for the shop. Again on 17.05.2022, the petitioner was directed to give specific reply either about the status of his son or about the aged person running a shop and other required information. In response to the same, the petitioner has categorically stated before the authority through his letter. It is a fact that his son is assisting him to run his shop. However, the PDS licence of the petitioner has been cancelled by the District Supply Officer, Ranchi vide memo no.580 dated 27.05.2022 and from bare perusal of the order, it appears that 3 though the petitioner has submitted his reply but the said reply is not acceptable and he is not entitled to run his shop and his PDS licence has been ordered to be cancelled only on the ground that on the date of inspection made by District Supply Officer, Ranchi, the shop of the petitioner was not opened because of his illness, against the said order, the petitioner preferred statutory appeal before the Deputy Commissioner, Ranchi vide PDS Appeal No.2R28/2022-23 and he has raised all the points that because of his illness only for one day he was unable to open his shop and there was no prior information about the inspection and the Deputy Commissioner vide order dated 20.09.2022 has dismissed the said PDS appeal. Being aggrieved with both the orders, i.e., the order dated 27.05.2022 as contained in memo no.580 and order dated 20.09.2022 passed in PDS Appeal No.2R28/2022-23, the instant writ petition has been filed. 3. Mr. Nilesh Kumar, learned counsel appearing for the petitioner has submitted that in pursuant to the letter dated 16.04.2022, the PDS licence of the shop has been suspended in contemplation of final order of cancellation and by the aforesaid order, the writ petitioner has been directed to give his reply as to why the PDS licence be not cancelled on the allegation of not opening the PDS shop for the whole day, i.e., on 12.04.2022. The writ petitioner has submitted his reply showing the reason of closure that since he is suffering from kidney problem and as such, he is used to go for dialysis and for the aforesaid period, when the petitioner is going for the medical treatment, his son is 4 being asked to carry out the business of the said PDS shop, so that, no inconvenience is caused to the beneficiaries. It has been contended that the District Supply Officer has cancelled the PDS licence but without taking into consideration the reply furnished and further the cancellation of PDS licence that to for closure of the shop for a day, is harsh and not commensurate in the irregularities said to have been committed by the writ petitioner. It has been contended that the order dated 27.05.2022 passed by the District Supply Officer, Ranchi has also been questioned before the appellate authority but the same has been dismissed by upholding the order passed by the District Supply Officer, Ranchi. 4. Mr. Nilesh Kumar, learned counsel appearing for the petitioner has placed an order passed by the coordinate Bench of this Court in W.P.(C) No.5970 of 2022 (Gajendra Sahu Vrs. The State of Jharkhand & Ors.) which has been disposed of vide order dated 14.03.2023, wherein, also on the same day, i.e., on 12.04.2022, an inspection was conducted, basis upon which, for closure of the PDS shop for a day, the PDS licence was cancelled but this Court, considering the same to be not commensurate with the charge leveled, has quashed the order passed by the District Supply Officer as also the subsequent order passed by the appellate authority for cancellation of PDS licence. It has been contended that the case of the writ petitioner is also on identical footing and hence, the cancellation order may also be quashed. 5 5. Mr. Kishore Kumar Singh, learned SC-V appearing for the respondent-State of Jharkhand has submitted by taking the aid of the averment made in the counter affidavit. He has submitted that the writ petitioner does not used to run the shop on its own, rather, his son is being allowed to carry out the business of the PDS shop and he is not carrying out the business from 8:00 a.m. in the morning to 2:00 p.m. in the noon, the period and duration for which the PDS shop is to be opened in order to supply the commodities to the beneficiaries. It has been contended that the inspection of the PDS shop was conducted twice but on both the occasions the shop was found to be closed and therefore, the PDS licence was suspended in contemplation of the decision of cancellation and an opportunity has been given to file reply as to why the PDS licence be not cancelled. A response has been submitted but the same having not found to be satisfactory, a decision has been taken to cancel the licence of the PDS shop. The writ petitioner has also preferred an appeal but the appellate authority after taking into consideration the importance of opening of PDS shop, has refused to interfere with the order passed by the District Supply Officer. Learned State Counsel, on the basis of the aforesaid ground, has submitted that if the shop has been found to be closed on inspection being done by the authority concerned twice and basis 6 upon which, the PDS licence was cancelled, the same cannot be said to suffer from an error. 6. This Court has heard the learned counsel for the parties, perused the documents available on record including the order cancelling the PDS licence and the order of the appellate authority. 7. There is no dispute about the fact that the PDS shop is to provide the benefit to the beneficiaries by supplying the commodities at subsidies rate. It is also not in dispute that the shop is to be opened from 8:00 a.m. in the morning to 2:00 p.m. in the noon. The authorities, in the facts of the given case, had conducted the general inspection on 12.04.2022. It has been alleged that the shop of the writ petitioner was inspected twice on 12.04.2022 but on both the occasions, the shop was found to be closed. The authority concerned, thereafter, has suspended the licence in contemplation of the decision of cancellation of PDS shop vide order dated 16.04.2022 and asked the writ petitioner to give reply as to why, the PDS licence be not cancelled. The writ petitioner has submitted his reply showing the reason that he is suffering from kidney ailment along with medical prescriptions/reports/certificates, as would be evident from medical prescription appended as Annexure-2 to the paper book. The authority concerned has not found the reply satisfactory and has cancelled the PDS licence, against which, an appeal was preferred before the appellate authority but the same was also 7 dismissed vide order dated 20.09.2022 (Annexure-6), therefore, the instant writ petition. 8. The ground has been taken that for closure of the PDS shop even accepting it to be correct, is harsh. The further ground has been taken that the writ petitioner has sufficiently been punished by keeping the licence under suspension from 16.04.2022 to 27.05.2022. 9. A serious objection has been raised to such contention on behalf of the learned State Counsel that taking into consideration the concept of opening of PDS shop, even the shop is found to be closed for an hour, the same will be said to be in the teeth to achieve the object and intent of the same. 10. This Court, on appreciation of the rival submissions is not in disagreement with the submission made on behalf of the learned State Counsel but the fact which has been raised on behalf of the writ petitioner that he has sufficiently been punished by keeping the licence suspended for a period of more than 1 ½ months for the aforesaid irregularity of not opening the PDS shop for a day, can also not be overlooked. Further, the writ petitioner has tried to justify the reason of suffering from kidney ailment by appending the various medical prescriptions/certificates but as would appear from the impugned order dated 27.05.2022 passed by the District Supply Officer, there is no consideration of the same, save and except the fact that the shop has been found closed on the inspection being conducted twice, then the question which is required to be considered by this Court is that when the reply is being asked and the same is being 8 responded, it is incumbent on the part of the authority concerned to give proper consideration of the said reply. The meaning of ‘consideration’ is the active application of mind of the factual aspect, as per the definition of ‘consideration’ given by the Hon’ble Apex Court in Chairman, Life Insurance Corporation of India & Ors. Vs. A. Masilamani, (2013) 6 SCC 530, wherein, at paragraph-19, it has been held by the Hon’ble Apex Court as under:- “19. The word “consider” is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority should reflect intense application of mind with reference to the material available on record. The order of the authority itself should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority and proceed to affirm its order. (Vide Indian Oil Corpn. Ltd. v. Santosh Kumar [(2006) 11 SCC 147 : (2007) 1 SCC (L&S) 388] and Bhikhubhai Vithlabhai Patel v. State of Gujarat [(2008) 4 SCC 144 : AIR 2008 SC 1771] .” 9 Herein, it is evident from the impugned order that there is no reference of the defence which has been taken for justification of reason for not opening of the shop for a day, i.e., suffering of the writ petitioner from the kidney ailment. It is not that only the statement has been made, rather, the various medical prescriptions/reports have been appended, therefore, the ground which has been shown by the writ petitioner cannot be said to be given a go-by by the respondent authority but the same has not been considered, therefore, this Court is of the view that the order impugned cannot be said to be sustainable in the eye of law due to non-consideration of the reply furnished by the respondent concerned. The fact about closure of the shop since has been accepted by the writ petitioner for a day justifying the reason of suffering from a kidney issues even if taken to be correct, then also for day of closure of the shop, the PDS licence of the writ petitioner has been suspended for a period of 1 ½ month, then, cancellation of the PDS licence will be too harsh. 11. A coordinate Bench of this Court has already taken a view on the similar set of inspection in the case of Gajendra Sahu Vrs. The State of Jharkhand & Ors., passed in W.P.(C) No.5970 of 2022 on 14.03.2023, therefore, there is no reason to take the different view. 12. Considering the same, the order dated 27.05.2022 (Annexure- 5) passed by the District Supply Officer, Ranchi and the order dated 20.09.2022 passed in PDS Appeal Case No.2R28/2022-23 (Annexure-6), are hereby quashed and set aside. 10 13. In the result, the instant writ petition stands allowed. 14. Pending Interlocutory Application(s), if any, stands disposed of. Rohit/-N.A.F.R. (Sujit Narayan Prasad, J.)