Mukesh Kumar vs The State of Jharkhand and Others

Narendra Nath Tiwari, J.—The petitioner, In this writ petition, has prayed for quashing the order dated 27.9.2007 whereby the petitioner''s P.D.S. licence has been cancelled without giving him proper opportunity of filing a show-cause.

According to the petitioner show-cause notice dated 18.9.2007 was issued to him giving him time till 21.9.2007 for filing his show cause reply. It has been submitted that he has received the said letter dated 18.9.2007 on 21.9.2007. He immediately rushed to the authorities and filed an application for granting at least two days'' time, as the notice was served on that day itself. But without paying any heed on the said prayer the Sub-Divisional Officer-cum-Rationing Officer, Godda passed the order canceling the licence of the petitioner''s P.D.S. It has been submitted that as per the prescribed Rules at least fifteen days clear time should be given for filing show-cause reply and before taking any such decision, but the said authority has violated the Rules and has acted against the principle of natural justice by not giving any opportunity to file show-cause reply. The said order Is arbitrary, discriminatory and Illegal.

The State-respondent has contested the petitioner''s prayer. In the counter affidavit the said facts have not been denied. However, it has been stated that notice dated 18.9.2007 was served on the petitioner and proper opportunity was given to him. There is no violation of any Rules and principle of natural justice.

I have heard learned Counsel for the parties and considered the facts and materials on record. From the impugned order I find that though respondent has mentioned in the order that the petitioner had not filed show-cause reply on the date fixed, he did not take notice of the circumstances under which the petitioner was prevented from filing his reply. By notice dated 18.9.2007 time till 21.9.2007 was given to file reply whereas the notice was served on the petitioner on 21.9.2007 itself. There is no denial of the respondents to the petitioner''s statements made In paragraph-10 of the writ petition that the order was passed without waiting for a show-cause reply. Paragraph 10 of the writ petition has been replied in para 8 of the counter affidavit vaguely stating that opportunity was given to the petitioner to file show-cause and he had filed show-cause reply. However, no copy of the show-cause has been annexed with the counter affidavit and brought on record or produced before this Court.

It has since been settled that compliance of the principle of natural Justice has to be proved by the person who asserts such compliance. Nothing has .been brought on record in support of the contention that proper opportunity to file show cause reply was given to the petitioner. From Annexure-1 of the writ petition it is evident that by notice dated 18.9.2007 only three days'' time till 21.9.2007 was allowed to file reply contrary to the mandatory provision of law. The petitioner had received the notice on 21.9.2007 and rushed to pray for time. But ignoring the prayer the impugned order was passed. There is no material to show that time was extended and opportunity was given to the petitioner for filing show-cause reply. No such reply has been brought on record as aforesaid. In view thereof the respondents, on, whom the burden of proving the fact of compliance of principle of natural justice lies, have failed to convince this Court that there was compliance of the prescribed Rule and principle of natural justice. Annexure-1 and other documents on record go to support the grievance of the petitioner that he was not given proper opportunity of representation and principle of natural justice has been violated by the respondents.

In view of the above, the impugned order being violative of principle of natural justice is a nullity. Any action/steps taken pursuant thereto are also illegal and without jurisdiction. This writ petition is, thus, allowed. The order dated 27.9.2007, as contained in Annexure-5 of the writ petition is quashed.

It goes without saying that the concerned authorities are at liberty to proceed in accordance with law. If there is any legal ground ground for proceeding against the petitioner.