Kuldeep Manjhi and Others vs The State of Bihar and Others

Kishore Kumar Mandal, J.—Heard learned counsel for the petitioners and the State. A counter affidavit on behalf of respondent Nos. 2 to 5 has been filed. The petitioners have filed a supplementary affidavit.

The two petitioners herein are fair price shop dealers in Mohada Block bearing License Nos. 1/2000 and 16/2008 respectively issued under the Public Distribution System (Control) Order, 2001 (for short "the Order"). While they were running the said shops the respondent i.e. Licensing Authority issued a notice dated 14.2.2012 (Annexure-3 series), which is/are identical in nature, calling upon them to file their show cause(s). The petitioners filed their show cause(s) (Annexure-4 series) dated 23.2.2012. By a common order dated 7.4.2012 (Annexure-5) passed by the Respondent Sub-Divisional Officer, Nimchak Bathani (Gaya), both the licences of the petitioners were cancelled. Aggrieved thereby, the petitioners filed two appeals being Supply Appeal Nos. 2/13 and 14/13. By two orders but in identical terms passed on 13.3.2013 the District Magistrate rejected the appeal(s). The allegations as per the show cause notice against the petitioners pertain to three counts: (i) the shop(s) at the time of inspection was/were found closed, (ii) the display board(s) was/were not there on the place, and (iii) there were general complainants against the licensees (petitioners herein) that they were not supplying the ration items to the consumers attached to their shops. The petitioners, aggrieved by the order passed by the Licensing Authority, had filed a writ petition in this Court vide CWJC No. 22254 of 2012. The said writ petition was considered and disposed of by order dated 6.12.2012 (Annexure-6), paragraph 5 whereof reads thus:--

"5. In view of the rival submission made by the counsel for the parties, I direct the petitioners to avail the remedy of appeal against the order dated 7.4.2012 (Annexure-1) before the Collector of the district who shall call for the Enquiry Report and examine whether the name of the allegationist who made complaint against the two petitioners that they were misusing their P.D.S. licence has been included in the Enquiry Report. So far Ground Nos. 1, 2 is concerned the Appellate Authority shall take a lenient view of the matter, provided it is the first complaint against the two petitioners that they were not maintaining the display board on the date of inspection. The appeal against the impugned cancellation order be filed before the Collector of the district within 30 days from the date of receipt of the certified copy of this order annexing the same and if the appeal is filed within the aforesaid time Collector should not only condone the delay in filing the appeal but shall also proceed to dispose of the same within 60 days from the date of filing of the appeal."

Learned counsel for the petitioners has submitted that from bare perusal of the show cause(s) issued to the petitioners (Annexure-3 series) and the two orders passed by the Licensing Authority as well as the appellate authority it would appear that an enquiry was got conducted by the District Supply Officer. In course of enquiry, the shops were allegedly found closed. The evidence/statements of the consumers attached to their shops were recorded in which allegations were made of non-distribution of the ration items by the licensees (petitioners herein). The petitioners at no point of time were made available the copy of the said inquiry report containing the allegations with regard to non-distribution of the ration items to the consumers enabling the petitioners to file an effective show cause(s). The shops as per the allegations were found closed and as such the enquiry, if any, was made in absence of the petitioners. In any event, the petitioners must have been given a copy of the said enquiry report enabling them to file effective show cause(s) dealing with the specific allegations made by the consumers against the petitioners. Non-supply of the copy of the enquiry report has vitiated the entire action taken against the petitioners since they were not afforded reasonable opportunity to submit their case/reply in the light of the evidence/statement recorded by the Enquiry Officer alleging non-distribution of the ration items. It has next been contended that observations made by this Court on their writ petition (Annexure-6) was/were also not taken into account by the appellate authority as would appear from bare perusal of the order passed by the appellate authority (Annexure-1).

Learned counsel for the State has, however, supported the impugned action including the order passed by the appellate authority. It has been submitted that there was specific allegation of non-supply/non-distribution of the ration items/articles for which the licence(s) was/were granted to the petitioners. This was a good ground to cancel the licence(s) of the petitioners. It has also been submitted that the show cause notice as per the requirement of the provision of the Order was issued to the petitioners.

I have considered the submissions of the parties.

The challenge to the order passed by the Licensing Authority as well as the appellate authority is chiefly/primarily on the ground that the inquiry report containing specific allegation in so far as non-distribution of the ration items was never furnished to the petitioner enabling them to file effective reply/response. If the respondent were relying on the said report, as is evident for the order passed by the Licensing Authority as well as the appellate authority, then it was incumbent upon them to supply copy of the said enquiry report to the petitioners enabling them to file effective show cause(s). Non-supply of the enquiry report would vitiate the entire procedure. The petitioners have relied on the order(s) passed by this Court contained in Annexure-7 series to support the said contention. It appears that non-supply of the enquiry report which formed the basis of the impugned action was considered as a serious flaw in the decision making process. On this ground alone, this Court interfered with the original as well as the appellate order(s). In the case at hand from the pleadings on record this much is evident that the petitioners were not supplied the copy of the said enquiry report enabling them to file effective show cause(s). This would amount to a breach of the principles of natural justice as well the provisions contained in the Order. The Order contemplates issuance of a notice before passing any such order. The notice, therefore, must contain all relevant facts and if the respondents were relying on the enquiry report then, in all fairness, the enquiry report should form the part of the notice enabling the petitioners to file their reply and contest the said allegation(s)/charges.

The memo of appeal (Annexure-8) has been brought on record by the petitioners, from perusal whereof it appears that specific plea in this regard was made by the petitioners in the said memo of appeal which has not been adverted to by the appellate authority. For the reasons aforesaid the application is allowed. The order(s) contained in Annexure-1 series and contained in Annexure-5 in so far as it relates to the petitioners, are quashed and set aside. The licence(s) issued to the petitioners to run the fair price shops are revived which would entitle the petitioner to receive allocations of the items to be dealt with in the fair price shops as per Clause 7(vi) of the Control Order. It shall, however, be open to the respondents to proceed afresh in the matter if they so desire but after issuing a fresh show cause notice enclosing therewith the copy of the enquiry report submitted by the District Supply Officer containing charges/allegations against the petitioners.