SCA/4974/2006 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4974 of 2006 For Approval and Signature : HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHANKARBHAI DEVJIBHAI CHAUDHARY - Petitioner(s) Versus STATE OF GUJARAT THR' SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR RJ GOSWAMI for Petitioner(s) : 1, MR VINAY S PANDYA, LD.ASSTT.GOVERNMENT PLEADER for Respondent(s) : 1, RULE NOT RECD BACK for Respondent(s) : 2 - 3. ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 24/01/2008 ORAL JUDGMENT 1. Heard Shri R.J. Goswami, learned counsel appearing for the petitioner and Shri Vinay S. Pandya, learned Assistant Government Pleader, appearing on behalf of the respondent-State. SCA/4974/2006 2/14 JUDGMENT 2. The petitioner by way of this petition has inter alia prayed for issuance of appropriate writ, order or direction quashing and setting aside the order dated 05th June 2004 passed by the respondent no.3-District Supply Officer; order dated 06th October 2004 passed by the respondent no.2-Collector and the order dated 22nd November 2005 passed by the respondent no.1-State. The petitioner has also prayed for restoration of his licence issued under the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 (hereinafter referred to as 'the Order, 1981'), so far as villages Gunjala, Meghaliyasna and Chitrodapura of Taluka Visnagar, are concerned. 3. It is contended by the petitioner that he had applied for licence under the Order, 1981 and he was issued the same by the competent authority bearing Licence No.481 of 2000. It is contended that the said licence was valid upto 31st December 2004 and the said licence was in respect of the aforesaid three SCA/4974/2006 3/14 JUDGMENT villages. It is the say of the petitioner that he was impeached for the irregularity committed by him in distribution of wheat under the scheme of Sampurna Gramin Rojgar Yojna. As per this scheme, the labourers who work in this scheme were being given one coupon and by way of such coupon, such a labourer is entitled to get wheat to the tune of 5 kg. per day from the fair price shop. As per the say of the respondent-authorities on 11th November 2003, the irregularity in question was committed by the petitioner and the stock of wheat to the tune of 23.10 quintals was not properly distributed amongst the said labourers and the petitioner had given the aforesaid entire stock to the Sarpanch of village Gunjala and it was delivered to the son of the said Sarpanch. The said stock of wheat was taken by the Sarpanch and his son in a tractor-trolley and the bills were prepared by the petitioner as per the names given by the said Sarpanch and his son on the letter-pad of Village Sarpanch. SCA/4974/2006 4/14 JUDGMENT It is further submitted that on checking it was found that some of the labourers named in the said letter were not physically fit to work and some of them were not there in the village itself. 4. It is further submitted by Shri R.J. Goswami, learned counsel appearing for the petitioner, that initial explanation given by the petitioner was accepted by the respondent- authorities; and the said Sarpanch was suspended for the wrong committed by him by misappropriating the entire stock of wheat, but ultimately the order of suspension of the Sarpanch was later on revoked, and thereafter, the proceedings came to be initiated against the present petitioner as an afterthought. The real wrong-doer has been exonerated directly or indirectly. Ultimately, the labourers were working at the village site. There was nothing wrong on the part of the petitioner to prepare bills on the data being provided by the Sarpanch of village. The respondent no.3 had taken into consideration all the relevant SCA/4974/2006 5/14 JUDGMENT aspects while dealing with the case of the present petitioner and the show cause notice was also issued to the petitioner and the respondent no.3 decided to confiscate the deposit of Rs.5,000/- which was submitted by the petitioner, however, the licence of the petitioner was not cancelled. As the petitioner was not satisfied with the said finding, he preferred an appeal before the respondent no.2-Collector and surprisingly, the respondent no.2 suo motu initiated action against the petitioner and cancelled his licence holding the petitioner responsible for the entire wrong. Though there are ample evidence, including the documentary evidence, to show that the material in question was taken by the Sarpanch for the purpose of distributing the same amongst the labourers working on the site, in that situation the petitioner ought to have been exonerated from his liability. Unfortunately, the respondent- State Government has confirmed the order passed by the respondent no.2 while dealing SCA/4974/2006 6/14 JUDGMENT with the Revision Application preferred by the petitioner. 5. On perusing the order at Annexure-D passed by the Revisional Authority, it is clear that the same is not at all a speaking order. On the contrary, the operative portion of the said order strengthens the case of the petitioner and the Deputy Secretary dealing with the revisional powers has accepted that the entire stock was taken by the Sarpanch of village Gunjala and his son. In such a situation, the petitioner at least ought not to have been held responsible for misappropriating the entire stock. At least he had committed an irregularity of not going to the site and distributing the material individually to the labourers. There is no reference as to the distance between the actual working place where the labourers were working and the fair price shop of the petitioner. But it emerges from record that physically the said distance must be more, otherwise there was no reason for the Sarpanch and his son to fetch the said SCA/4974/2006 7/14 JUDGMENT stock of wheat to the tune of 23.10 quintals. The fair price shop of the petitioner is at different village and the labourers were working at village Gunjala. So the petitioner ought to have been termed as a person negligent than a person who has committed misappropriation. It is clear from the order passed by the respondent no.2 also that the respondent no.2 has not applied his mind while cancelling the licence of the petitioner. The cancellation of licence is the extreme penalty and in the case of gross irregularity and on availability of selling material by encashing higher price or forging the documents, normally the Government cancels the licence in the cases where there is an element of selling goods at higher price or where licensee is found responsible for forging the bills, etc. No such serious allegation was ever made against the petitioner. On the contrary, all the aforesaid three authorities have accepted that the material in question was taken by the Sarpanch and his son. The petitioner was not SCA/4974/2006 8/14 JUDGMENT wrong if he had taken the behaviour of the Sarpanch as a helping hand in sending the material to the labourers working at the neighbouring village i.e. village of the said Sarpanch. 6. It appears that the punishment imposed upon the present petitioner is prima facie indisputably harsh; but it would not be either proper or justified for this Court to replace the quantum of punishment. However, this Court at least can remand the matter to the respondent-State so that the respondent-State can take judicious decision in the matter. In number of cases, the respondent-State has permitted the fair price shop licence holder to continue the licence by forfeiting 100% or 50% of the deposit submitted by such a dealer at the time of obtaining licence. This very Court had referred to three such orders while dealing with Special Civil Application No.234 of 2008 and it is not necessary to refer to those orders but indisputably all those three orders are passed by the respondent-State SCA/4974/2006 9/14 JUDGMENT Government in exercise of revisional jurisdiction vested in the Government. 7. There is enough force in the arguments advanced by Shri R.J. Goswami, learned counsel appearing for the petitioner, that before issuance of show cause notice, the licence of the petitioner was placed under suspension pending inquiry. Therefore, the respondent- State was under obligation to record its final finding within a period of 90 days from the date of order of suspension of licence of the petitioner in view of the provisions of the Order, 1981. In the present case, the order of suspension of licence of the petitioner is of 23rd February 2004. So the respondent no.2 ought to have cancelled the licence of the petitioner on or before 22nd May 2004; but the order of cancellation of licence is of 06th October 2004. The respondent no.3 could ave cancelled the licence latest by 22nd May 2004. Ultimately, the respondent no.3 decided not to cancel the licence of the petitioner but to impose other penalty i.e. confiscation of SCA/4974/2006 10/14 JUDGMENT security deposit of the petitioner. So on expiry of the aforesaid period of 90 days, the licence of the petitioner came to be revived automatically. The respondent no.2 ought to have remanded the matter to the respondent no.3 observing that according to him, this is a fit case of cancellation of licence and, therefore, he should afford opportunity of hearing to the petitioner afresh. Of course, the respondent no.2 had afforded opportunity of hearing to the petitioner, but has not considered all the relevant factual aspects involved in the matter and that has resulted into improper exercise of jurisdiction vested in the Appellate Authority. True it is that the respondent no.2 can cancel the licence in a suo motu proceeding initiated by him, but such powers ought to have been exercised keeping in mind all the other relevant criteria. When there was nothing perverse or basically illegal in the finding recorded by the respondent no.3, there was no reason for the respondent no.2 to modify the order of SCA/4974/2006 11/14 JUDGMENT punishment passed by the respondent no.3 and this Court is also not satisfied with the grounds for not accepting the finding recorded by the respondent no.3. The Revisional Authority has exercised powers mechanically and by passing a non-speaking order has upheld the findings of the respondent no.2. This Court is of the view that considering the totality of facts and circumstances of the case, the findings recorded by the respondent no.2 as well as the Revisional Authority are not sustainable in the eye of law and the matter is required to be remanded to the Revisional Authority so the authority can decide the adequacy of punishment keeping in mind the order passed by the respondent no.3 vis-a-vis the other relevant facts and also the fact that indisputably the stock in question was taken away by the said Sarpanch and his son under the pretext that they will distribute the same to the labourers working on the site at their village. They had also pretended to be the persons knowing each SCA/4974/2006 12/14 JUDGMENT labourer by providing the names of the said labourers on their letter-pad. This is a fit case wherein the respondent-State Government (Revisional Authority) ought to have decided to prosecute the said Sarpanch in view of provisions of Clause 3(7) of the Order, 1981 and the present petitioner ought to have been cited as a witness in such a prosecution. However, instead of recording such a finding, the Revisional Authority has decided to cancel the licence of the petitioner which appears to be unjust being the extreme penalty, but it would not be proper for this Court to replace the quantum of punishment imposed by the competent authority. So the matter is required to be remanded to the respondent-State Government (Revisional Authority) to reconsider the entire matter de-novo by giving opportunity of hearing to the petitioner. 8. In view of aforesaid observations and discussion, the present petition is hereby allowed. The orders dated 05th June 2004, 06th November 2004 and 22nd November 2004 passed by SCA/4974/2006 13/14 JUDGMENT the respondent nos.3-District Supply Officer, respondent no.2-Collector and respondent no.1- Deputy Secretary (Revisional Authority) under challenge in this petition are hereby quashed and set aside. The Deputy Secretary, Food and Civil Supply Department, Sachivalaya, Gandhinagar is hereby directed to consider the entire aspects of the matter and reach to a fresh finding without being influenced by the observations made in the earlier orders passed by the respondent no.2-Collector or his predecessor in the office or the observations made in this order because it is possible for the petitioner to argue that the order of confiscation of entire security deposit amount passed by the respondent no.3 is also required to be quashed. 9. The respondent- State Government is directed to decide the remanded Revision Application of the petitioner at the earliest, preferably within a period of three months from the date of receipt of writ of this order. SCA/4974/2006 14/14 JUDGMENT Rule is made absolute accordingly. Direct Service is permitted. (C.K. Buch, J) Aakar