Rajpal Singh vs State of U.P.and Others

Rajiv Sharma, J.—On the application for interim relief, I proceed to hear the matter finally.

Heard learned counsel for the petitioner and learned Standing Counsel.

By means of the instant writ petition, the petitioner is assailing the order dated 17.5.2006 and order dated 19.6.2007 passed by respondents No.2 and 3 as contained in Annexures 3 and 4, respectively, to the writ petition.

It has been stated in the writ petition that the petitioner is a license holder of the fair price shop, situated at village panchayat Paira, Block Kachhauna, Hardoi. On the basis of the complaint made by village Pradhan of Gram Panchayat, Paisa, respondent No.2 has given a show cause notice and further the license of the fair price shop of the petitioner was suspended vide order dated 2.2.2006. The petitioner has given reply to the show cause notice, stating therein that the charges levelled against the petitioner are false and baseless. On 17.5.2006, after consideration of the reply made by the petitioner, respondent No.2 has cancelled the license of the fair price shop. Being aggrieved thereof, the petitioner has preferred an appeal before the respondent No.3 and the appellate authority, vide order dated 19.6.2007, dismissed the appeal. Hence, the petitioner has preferred the instant writ petition inter alia on the ground that impugned orders have been passed in utter disregard of the provisions of the natural justice as the report of the Supply Inspector, on which reliance has been placed, copy thereof was not furnished to the petitioner causing serious prejudice.

In support of this argument, the copy of the report on which reliance is placed by an authority, it should be furnished to a person against whom order is passed, he has placed reliance on a decision of this Court in M/s. Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and others, 2001 (19) LCD 513.

Refuting the arguments advanced by learned counsel for the petitioner, the learned Standing Counsel submits that furnishing a copy of the report is not at all necessary and it will not cause any prejudice to the petitioner. He submitted that there is no provision to provide the copy of the inquiry report and as such, the copy of the inquiry report was not given to the petitioner before cancelling his license. However, he submitted that the petitioner was communicated the reasons of cancellation of his license, which are enumerated in the cancellation order itself. Thus, there is no infirmity in the impugned order of cancellation and principle of natural justice are not attracted in the instant case.

In M/s. Mahatma Gandhi Upbhokta Sahkari Samiti v. State of U.P. and others, 2001 (19) LCD 513, on which reliance has been placed by the learned counsel for the petitioner, the controversy was that the cancellation was passed on the basis of inquiry conducted by SubDivisional Magistrate but the copy of the inquiry report on which reliance was palced was not furnished to the petitioner. A Division Bench of this Court comprising of Hon''ble Mr. Justice S.K. Sen (the then Chief Justice) and Hon''ble Jagdish Bhalla, J. (as he then was) held that when report of inquiry has been relied upon by the disciplinary authority, that report has to be furnished to the person who is effected by the same. In that view of the matter, we are of the view that the impugned order suffers from the violation of the Principle of Natural Justice.

The Hon''ble Supreme Court in iota of cases has reiterated that a person who is put to any harm, he shall first be afforded adequate opportunity of showing cause. In D.K. Yadav v. J.M.A. Industries; (1993) 3 SCC 259, the Supreme Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon''ble Apex Court concluded as under:

�The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, for and reasonable and not arbitrary, fanciful or oppressive.�

In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, it was observed by the Apex Court that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.

In the instant case, it is an admitted case of the respondents that the copy of the report on which reliance was placed, was not furnished to the petitioner, therefore, the impugned order of cancellation suffers from the legal infirmities and has been placed in blatant disregard of the provisions of the natural justice. The appellate authority committed an error in not taking into account settled principle of law relating to natural justice and dismissed the appeal.

For the reasons aforesaid, the order of cancellation as well as the order passed by the appellate order are not sustainable in the eyes of law. Accordingly, the impugned orders dated 17.5.2006 and 19.6.2007 are setaside. The license of the petitioner shall be restored without any delay. However, the present order will not prevent the respondents authorities to take appropriate action strictly in accordance with law and it will be open for the SubDivisional Magistrate concerned to pass fresh order after affording due opportunity of hearing to the petitioner, in case he so desires.

The writ petition is allowed.

(Petition allowed)