Qumar Jahan vs State Of U.P. And Others

Heard learned counsel for the petitioner and learned Standing Counsel for respondent no.1 to 6. The orders passed by the licensing authority and the appellate authority for cancellation of fair price shop of the petitioner are under challenge in the present petition. It appears that the proceedings have been initiated on a surprise inspection of the shop in question made on 30.05.2016 by the Sub Divisional Officer, Hapur. At the time of inspection i.e. around 1.30 PM the shop was found closed. When the petitioner''s husband was contacted on telephone he informed that they were out of station and would reach on the next date i.e. on 31.05.2016. On 31.05.2016, an information was received that an effort was being made to complete the stock of the fair price shop by unloading some sacks kept in the vehicle namely Tata 407. The Tehsildar, Hapur, Revenue Inspector and Lekhpal reached the spot and confiscated 53 jute sacks and 7 plastic sacks of wheat from the said vehicle. The fair price shop of the petitioner was inspected on the same day i.e. 31.05.2016 around 10.30 AM. The stock was found in deficit in the shop in question.

An FIR under section 3/7 of U.P. Essential Commodities Act 1955 was lodged against the petitioner. The goods available in the shop in question were confiscated. It appears that an order dated 20.01.2017 was passed by the Additional District Magistrate, Hapur and it was held that since the stock has been confiscated and the goods which were found in the said vehicle were not proved to belong to the fair price shop dealer, therefore, the proceedings under Section 6 (A) of the Essential Commodities Act were dropped.

However, the present proceedings have been initiated levelling allegations against the petitioner for keeping the stock of essential commodities not in the fair price shop rather at a different place. The charge against the petitioner was also that during the spot inspection, the stock was found deficient which was lifted for distribution for the month of June 2016. By order dated 02.06.2016, the license was suspended and a charge sheet dated 26.08.2016 was served upon the petitioner to which a reply was given on 23.09.2016. Alongwith the reply, the petitioner filed distribution register of January 2016 to May 2016. After consideration of the reply submitted by the petitioner, the licensing authority found that the petitioner was guilty of keeping the stock of essential commodities at a different place than the fair price shop for which no permission was granted by the competent authority. The appellant authority has also rejected the appeal on the ground that the petitioner was guilty of keeping the goods at a different place with an intention to black market the same.

Challenging these orders, the contention of learned counsel for the petitioner is that the charges of black marketing were not proved against the petitioner. In the case under Section 6-A of the Act, the order was passed by the Additional District Magistrate that the confiscated good did not belong to the petitioner. The order was illegally ignored by the licensing authority.

So far as keeping the stock at a different place, the defence taken by the petitioner in his reply dated 23.09.2016 has been placed before the Court. A perusal of the said reply indicates that the petitioner has taken a plea that he moved an application on 25.2.2016 before the District Supply Officer, Hapur for granting her permission to keep the goods at a different place and the said permission was duly granted to the petitioner.

However, on a query made by the Court learned Standing counsel has placed the order passed by the District Supply Officer dated 25.02.2016 on the application moved by the petitioner which is appended at page no.50 of the paper book. A perusal thereof indicates that the District Supply Officer passed an order dated 25.02.2016 to the Supply Inspector to submit a report after making an enquiry. No permission whatsoever had been granted to the petitioner to keep the stock at a different place.

With reference to the page no.51 of the paper book, learned counsel for the petitioner submits that permission had been granted by the District Supply Officer Hapur, with the approval of the report submitted by the Supply Inspector. On the other hand the District Supply Inspector, Hapur in the cancellation order dated 06.10.2016 has categorically stated that no such application as alleged was received in the office of the District Supply Officer seeking his permission and as such there was no question of approval granted by him. Learned counsel for the petitioner has not been able to place any material to dispute the findings of fact recorded by the District Supply Officer. In absence of such permission the explanation offered by the petitioner cannot be accepted.

Moreover, it is further clear from the report appended at page no.33/34 of the paper book which was the basis of initiating the proceedings against the petitioner that the spot inspection was to be done on 30.05.2016 but the shop was kept locked by the petitioner and after having got information about the inspection an effort was made to make the stock in the shop complete. The petitioner has not been able to succeed in her intentions as the goods which were kept in the vehicle for unloading in the shop of the petitioner were confiscated. In the case under Section 6-A of the Act, the petitioner has been able to succeed as the allegations against the petitioner could not be proved by applying the strict rules of evidence. However, in the disciplinary matter the strict rules of evidence are not applicable. The enquiry is done on the principles of preponderance of probability. Looking to the enquiry report and the admitted fact that the entire stock of essential commodities was not available in the fair price shop on the date of inspection, this Court has no other option but to hold that the petitioner was guilty of keeping the stock at a different place with an intention to black market the same. The question of distribution would not arise in the present case for the reason that the essential commodities which were lifted by 30.05.2016 were to be distributed in the month of June, 2016. The question, therefore, is not of irregularity in the distribution and as such the registers filed by the petitioner were rightly not examined.

Further, as per own case of the petitioner she has kept the stock at another place which was not permitted at all under the terms and conditions of the agreement. No permission as alleged had been granted to the petitioner to keep the stock at a different place and as such the findings recorded by the District Supply Officer, Hapur in this regard cannot be faulted with.

Lastly, a plea has been taken by the learned counsel for the petitioner regarding non supply of the enquiry report, reliance is placed by the learned counsel for the petitioner on the Full bench of this Court in the case of Puran Singh vs. State of U.P. and others (2010 (3) ADJ 659 (FB) to submit that non supply of the enquiry report and non giving opportunity of hearing would vitiate the proceedings of the cancellation.

In the present case, though the learned counsel for the petitioner would submit that the show cause notice was not served upon the petitioner, however, the reply submitted by him on 23.09.2016 to the charge sheet has been taken into consideration wherein it is categorically stated that the petitioner has kept the stock else-where with the permission of the Competent Authority. The reason for cancellation of fair price shop license of the petitioner is same as the charge mentioned in the show cause notice. The reply submitted by the petitioner has been taken into consideration and the defence taken by her in her explanation was not found correct. Thus it is clear that sufficient opportunity has been provided to the petitioner to submit her explanation and her reply has been considered.

Moreover, the petitioner was accorded post decisional hearing in the appeal filed by her. It is well settled that compliance of principles of natural justice is not an empty formality, the person who is claiming violation of natural justice on the ground of not getting due opportunity of hearing has to show and establish the prejudice caused to him/her before this Court. On a query made by the Court the learned counsel for the petitioner has not able to furnish any other explanation than what has been stated by the petitioner in her reply dated 23.09.2016.

In view thereof, this Court is of the opinion that no prejudice has been caused of the petitioner for non supply, if any, of the enquiry report. The ratio of the Full Bench judgement of this Court is not applicable in the fact and circumstances of the case In view of the facts and circumstances of the case, the writ petition is found devoid of merits and hence dismissed.