# Kaleem Ullah Khan v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 35
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-08
- **Case number:** Civil Misc. Writ Petition No. 10039 of 2013
- **Bench:** Mahesh Chandra Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kaleem-ullah-khan-v-state-of-u-p-ors-43089
- **Pages:** 7

## Headnote

Constitution of India, Art.-226-Cancellation
of fair price shop license-without supplying
the copy of complaint-charge sheet-without
oral
enquiry-without
copy
of
enquiry
report-without
following
procedure
of
enquiry contained in G.O. 29.07.04-heldorder impugned not sustainable-quashedwith
liberty
to
pass
fresh
order
in
accordance with law.
Held: Para-13
Applying the ratio of the law laid down in the
aforesaid case, the court finds that the inquiry
proceedings were conducted in flagrant
defiance of the Government Order dated
29.7.2004 and the law laid down by this Court
and therefore, the case of the petitioner was
severely prejudiced thereby making the
impugned orders dated 29.09.2012 and
16.01.2013 unsustainable in law.
Case Law discussed:
[2003] (21) LCD 610]; 2008 (3) ADJ 36 (DB);
2010 (6) ADJ 339.

## Text

1 All]. Kaleem Ullah Khan Vs. State of U.P. & Ors.
35
judicial proceedings or any inquiry by the
administrative tribunal and in absence of
these inquiries or proceedings pending on
the date of retirement, gratuity of the
retiring employee cannot be withheld.
14. As observed above, admittedly,
in the instant case, no departmental or
judicial proceeding or any such inquiry
was pending, hence there cannot be any
justification for withholding the gratuity
of the petitioner.
15. In fact, the impugned order does
not withhold part of amount of gratuity;
rather it seeks to recover the same citing
the cause that the petitioner has been
responsible for causing loss to the State
Exchequer to the extent of the amount
mentioned in the impugned order.
16. The question, thus, is as to
whether without holding any departmental
inquiry and without determining the
responsibility of the petitioner for the
alleged loss, solely on the basis of audit
report, can any recovery from the
petitioner be made.
17.
It is well established that audit
report cannot be used as substantive evidence
of the genuineness or bonafide nature of the
transactions referred to in the accounts. As
has been held by this Court in the case of
Dilip Singh Rana vs State of U.P. reported in
1993 (7) SLR 706, audit is only official
examination of the accounts in order to make
sure that the accounts have been properly
maintained according to prescribed mode
and further that audit report is a statement of
facts pertaining to the maintenance of
accounts coupled with the opinion of the
auditor and thus it can only give rise to
reasonable suspicion of commission of a
wrong. Merely on the basis of said audit
report without the charge of causing loss
being
established
in
a
full-fledged
departmental inquiry, no recovery of alleged
loss caused to the State Exchequer can be
made.
18.

In
similar
circumstances,
recovery sought to be made from the
gratuity of a retired government employee
on the basis of some audit report was not
approved by a Division Bench of this
Court in the case of Radhey Shyam Dixit
vs State of U.P. and others, reported in
2006 (110) FLR 101.
19. For the reasons disclosed above in
the instant case as well, the recovery of the
part of the amount of gratuity of the petitioner,
which has been sought to be made by passing
the impugned order dated 24.07.2013, cannot
be permitted to be sustained.
20. In the result, the writ petition is
allowed and the impugned order dated
24.07.2013 passed by the Regional Food
Controller, Faizabad Region, Faizabad as
contained in annexure no.1 to the writ
petition is hereby quashed. It is directed
that payment of entire gratuity amount
shall be made to the petitioner within six
weeks from the date of production of
certified copy of this order.
21. However, there will be no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2014
BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
Civil Misc. Writ Petition No. 10039 of 2013
Kaleem Ullah Khan
 ...Petitioner
36
 INDIAN LAW REPORTS ALLAHABAD SERIES
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Bal Krishna Pandey, Sri Amit Singh
Chauhan, Pooja Srivastava, Sri Neeraj
Srivastava, Sri Navin Kumar
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Cancellation
of fair price shop license-without supplying
the copy of complaint-charge sheet-without
oral
enquiry-without
copy
of
enquiry
report-without
following
procedure
of
enquiry contained in G.O. 29.07.04-heldorder impugned not sustainable-quashedwith
liberty
to
pass
fresh
order
in
accordance with law.
Held: Para-13
Applying the ratio of the law laid down in the
aforesaid case, the court finds that the inquiry
proceedings were conducted in flagrant
defiance of the Government Order dated
29.7.2004 and the law laid down by this Court
and therefore, the case of the petitioner was
severely prejudiced thereby making the
impugned orders dated 29.09.2012 and
16.01.2013 unsustainable in law.
Case Law discussed:
[2003] (21) LCD 610]; 2008 (3) ADJ 36 (DB);
2010 (6) ADJ 339.
(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)
1. Heard learned counsel for the
petitioner and learned counsel for the
respondents.
2. By means of the present writ
petition, the petitioner has prayed for
quashing the order dated 29.09.2012
passed by respondent No. 3 by which the
fair price shop of the petitioner had been
cancelled.
3.
Aggrieved
with
the
said
cancellation order, the petitioner had
preferred statutory appeal, which was also
rejected by the respondent No. 2 vide an
order dated 16.01.2013.
4. Brief facts giving rise to the
present writ petition are that the petitioner
is a fair price shop dealer in Mohalla Gher
Hasan Khan, Rampur since the date of his
allotment and his work and conduct is
satisfactory and no complaint has ever
been
made
against
the
petitioner
regarding irregularities in distribution of
essential commodities by the valid ration
card holders till date.
5. It has been averred in the writ
petition that the respondent No. 2
suspended the fair price shop of the
petitioner on the basis of mala-fide
complaint as well as on report being
submitted by the Supply Inspector and
directed the petitioner to submit his reply.
Thereafter, in pursuance to the suspension
order,
the
petitioner
submitted
his
explanation before the respondent No. 2
alongwith documents and affidavit of
villagers denying the entire allegation
levelled against him. It has also been
averred that the respondent No. 2, without
considering the explanation given by the
petitioner and without perusing the
evidence on record cancelled the licence
of fair price shop of the petitioner.
6. Being aggrieved with the
cancellation order, the petitioner had
preferred an Appeal No. 31 of 2012-13
(Kaleem Ullah Khan Vs. State of U.P. and
others) alongwith stay application before
the respondent No. 2 under Section 28 (3)
of
U.P.
Essential
Commodities
(Distribution) Order, 2008. Thereafter the
respondent No. 2, without considering the
1 All]. Kaleem Ullah Khan Vs. State of U.P. & Ors.
37
facts of the case and without perusing the
material on record, had dismissed the
appeal of the petitioner.
7. Learned counsel for the petitioner
submits that a Division Bench of this
Court in Radhey Kant Khare Vs. U.P.
Cooperative Sugar Factories Federation
ltd. [2003](21) LCD 610] held that after a
charge-sheet is given to the employee an
oral enquiry is a must, whether the
employee requests for it or not. He further
submits that no doubt, the aforesaid
principles have been laid down by the
Division Bench in the service matter but
the same principle would also be
applicable while making an inquiry in the
present matter. Hence a notice should be
issued to him indicating him the date,
time and place of the enquiry. On that
date so fixed the oral and documentary
evidence against the employee should
first be led in his presence. Thereafter the
employer must adduce his evidence first.
The reason for this principle is that the
charge-sheeted employee should not only
know the charges against him but should
also know the evidence against him so
that he can properly reply to the same.
The person who is required to answer the
charge must be given a fair chance to hear
the evidence in support of the charge and
to put such relevant questions by way of
cross-examination, as he desires. Then he
must be given a chance to rebut the
evidence led against him.
8. It is settled principle that if any
material is sought to be used in an
enquiry, the copies of material must be
supplied to the party against whom such
an enquiry is held. The Disciplinary
Authority as well as Appellate Authority
did not consider this aspect of the matter
and expressed their concurrence to the
finding of the Inquiry Officer, without
applying their independent and free mind.
The
Appellate
Authority
while
considering the appeal of the petitioner
failed to appreciate the fact that the
Enquiry Officer at the back of the
petitioner had proved charges without
affording
reasonable
opportunity
to
controvert the same. Therefore, the order
of Appellate Authority is bad in law and
cannot be sustained.
9.

Learned
counsel
for
the
respondents submits that the impugned
orders are sustainable and the same had
been passed strictly in accordance with
law and as per record.
10. On the facts of the present case,
the petitioner ought to have been
permitted to participate in the aforesaid
inquiry and the statements of the
complainants should not have been
recorded in the presence of the petitioner,
and without furnishing the statement of
the complainants to him and without
giving him an opportunity to crossexamine the complainants, who had
deposed against the petitioner, and thus
any such action based on any such report
or
evidence
could
not
become
a
foundation for passing an order of
cancellation of fair price licence of the
petitioner
as
cancellation
has
civil
consequences.
11. Learned counsel for the
petitioner further submits that it was
incumbent upon the inquiry officer to
follow the procedure, which is prescribed
in Government Order dated 29.07.2004,
which
provides
the
procedure
for
suspension/cancellation of fair price shop
lecence, so that the officers cannot
proceed
in
illegal
manner,
and
38
 INDIAN LAW REPORTS ALLAHABAD SERIES
unnecessary litigation may be avoided. He
also placed his reliance upon a Division
Bench judgment of this Court in Civil
Misc. Writ Petition No. 58470 of 2005
(Harpal Vs. State of U.P. and others),
decided on 26.2.2008, reported in 2008(3)
ADJ 36 (DB). For ready reference the
relevant paras nos. 9 to 15 are reproduced
here in below:-
"9. From a reading of Clause 30 it is
clear that the Uttar Pradesh Scheduled
Commodities
Order,
1990
was
superseded and repealed. Clause 31 of
2004 Order states that it will have effect
irrespective on any thing contrary to it
contained in any earlier order issued by
the State Government. The 2004 Order
was issued by the State Government for
maintaining the supplies of food grains
and other essential commodities and for
securing their equitable distribution and
availability at fair prices. Its Clause 21 is
concerned with monitoring of fair price
shops by the food officer and he was to
make regular inspections. Clause 22 of
the Order gave power to the Food Officer
and other officers the power of entry,
search and seizure and Clause 23 gave
power to the State Government to
authorize any person to inspect the stocks
of scheduled commodities other than the
officer mentioned in Clause 22. So far as
the maintenance of supply of food grains
and other essential commodities and their
distribution and availability at fair price
shop was concerned the 2004 Order
provided stringent methods to deal with
the erring licensees of fair price shops.
But the 2004 Order did not provide any
procedure for suspension/cancellation of
the licences or agreement of fair price
shop licensees. The 2004 Order did not
lay down any procedure as to how and in
what manner the licence/agreement of a
fair price shop licensee/agent could be
suspended or cancelled nor any time
frame had been provided. On the other
hand, the Government order dated
29.7.2004 prescribes the procedure for
taking
recourse
to
suspension/cancellation by the officers
and fixes a time frame for taking action
against the licensees. The Government
order dated 29.7.2004 does not contain
any provision which is contrary to 2004
order.
The
2004
Order
has
not
superseded the Government order dated
29.7.2004. The G. O. dated 29.7.2004 and
2004 Order dated 20.12.2004 operate in
different fields with the same object to
ensure equitable and fair distribution of
essential commodities to the people. We
are of the considered opinion that the
G.O. dated 29.7.2004 and the 2004 Order
dated 20.12.2004 are valid and are still in
force and are applicable in the State of
Uttar Pradesh.
10. The next question is whether the
impugned suspension order has been
passed in violation of principles of
natural justice? From the perusal of the
suspension order it is clear that no
opportunity of hearing was afforded to the
petitioner either at the time of enquiry or
before passing of the order suspending
the fair price shop licence/agreement of
the petitioner. In the counter-affidavit it
had not been stated that opportunity of
hearing was given at any stage. The
enquiry was conducted behind the back of
the petitioner. The entire proceedings
were in violation of the principles of
natural justice. The argument of learned
Additional Chief Standing Counsel that
principles of natural justice do not apply
to the cases where fair price shop licence
had been granted in view of the decision
in Gopi's case, cannot be accepted. The
G.O. dated 29.7.2004 clearly mandates
1 All]. Kaleem Ullah Khan Vs. State of U.P. & Ors.
39
and directs the authorities to comply with
the principles of natural justice before
suspending/cancelling fair price shop
licences/agreements. It appears that this
G.O. dated 29.7.2004 was not placed
before the Division Bench which decided
Gop's case and in Ignorance of this
Government order the decision has been
rendered and the decision has been
passed in sub-stlientio in view of the law
declared by the Apex Court in State of
U.P. and another v. Synthetics and
Chemicals
and
Anr.
MANU/SC/0616/1991 : 1993(41)ECC326
. Since the G.O. dated 29.7.2004 was not
considered by this Court the decision in
Gopi's case cannot be said to be a good
law or a precedent.
11. The next question is whether the
petitioner
has
to
be
relegated
to
alternative remedy of filing an appeal to
challenge the suspension order which has
been passed in violation of principles of
natural justice? The learned Additional
Chief Standing Counsel has vehemently
urged that even if there was violation of
principles of natural justice the petitioner
had an alternative remedy to file an
appeal
before
the
Commissioner
challenging the suspension order. It is
true that the suspension or cancellation of
a fair price shop licence could be
challenged under Clause 28(3) of the
Uttar Pradesh Scheduled Commodities
Distribution Order, 2004 before the
concerned Divisional Commissioner, but
the appeal under Clause 28(3) lies only
against the suspension or cancellation of
agreement of the fair price shop. But
where
an
order
is
passed
suspending/cancelling the fair price shop
licence/agreement
in
violation
of
principles
of
natural
justice
the
alternative remedy would not be a bar
and a writ petition would be maintainable
under Article 226 of the Constitution of
India. It has been held by the Apex Court
in Whirlpool Corporation v. Registrar of
Trade
Marks,
Mumbai
and
Ors.
MANU/SC/0664/1998
:
AIR1999SC22
that even if an alternative statutory
remedy is available it would not be a bar
in maintenance of a writ petition under
Article 226 of the Constitution in at least
three contingencies, (i) where the writ
petition seeks enforcement of any of the
fundamental rights; (ii) where there is
violation of principles of natural justice;
or
(iii)
where
the
order
or
the
proceedings
are
wholly
without
jurisdiction or the vires of an Act is
challenged. We have already held that it
was mandatory for the authorities/officers
to comply with the principles of natural
justice before suspending/cancelling the
fair
price
shop
licences/agreements.
Therefore, we are of the considered
opinion that the impugned suspension
order has been passed in violation of
principles of natural justice, the writ
petition filed by the petitioner without
availing the alternative remedy of appeal,
is maintainable under Article 226 of the
Constitution.
12. The last question is whether on merits
the suspension order is liable to be set
aside? In view of the findings recorded by
us that the suspension order was passed
in violation of principles of natural
justice, it is not necessary to examine
whether the order suspending the licence
of the petitioner was in 'accordance with
Government
orders,
but
since
the
Additional Chief Standing Counsel has
vehemently attempted to defend the order
on merits, we consider it necessary to
examine the correctness of the suspension
order in brief. The petitioner's fair price
shop
licence/agreement
has
been
suspended. The suspension order does not
40
 INDIAN LAW REPORTS ALLAHABAD SERIES
disclose that any opportunity of hearing was
given to the petitioner. It appears that SubDivisional Magistrate, Faridpur, Bareilly on
the basis of oral complaints of the villagers
got an enquiry conducted against the
petitioner on 27.5.2005 and in the enquiry it
was found that the shop was closed and rate
board was not put outside the shop. The fair
price shop licensee was charging Rs. 12 per
litre in excess of the scheduled price of
kerosene oil which was violation of condition
No. 24 (Ga) of the licence/agreement. In the
enquiry ration cards were also inspected and
it was found that every month kerosene oil
was not properly distributed. Sugar was also
not properly distributed to persons who were
below the poverty line which was violation of
condition No. 3 of the licence/agreement.
The shop of the petitioner was suspended
and attached to another fair price licensee
Devendra Kumar Pathak. It is not mentioned
in the suspension order that who conducted
the enquiry and when? It is also not clear
that if the shop was closed at the time of
enquiry then from where this fact was
revealed that the petitioner was charging Rs.
12 per litre in excess of scheduled price of
kerosene oil and from where the ration cards
were inspected by the enquiry officer. The
impugned suspension order does not disclose
that any show-cause notice was issued to the
petitioner to submit his reply as to why the
petitioner's licence may not be cancelled.
According to learned Counsel for the
petitioner on the basis of such vague
allegations
licence/agreement
of
the
petitioner could not be suspended. He has
placed reliance on the decisions of this Court
in Civil Misc. Writ Petition No. 60978 of
2005, Smt. Alka Rani v. State of U.P. and
Ors. decided on 14.9.2005. The order of the
Division Bench is extracted below:
"We have heard the learned Counsel
for the petitioner and the learned standing
counsel. Petitioner's fair price shop
licence was suspended and by the
impugned order dated 22.8.2005 it has
been cancelled. The cancellation order
says
that
despite
opportunity
the
petitioner did not submit any reply.
Normally, we would have directed
the petitioner to avail alternative remedy
of appeal, but we find from the show
cause notice (Annexure-4 to this writ
petition) that almost all the charges are
absolutely vague without giving any
specific instance and without mentioning
any material on the basis of which each of
the charges is proposed to be proved
against the petitioner. For example when
charge No. 2 says that distribution
according
to
entitlement
of
ration
cardholders has not been made every
month, the notice should also have
indicated when and to which card holders
distribution was not made. Similarly,
when charge No. 4 says that kerosene oil
is being sold at the rate of Rs. 11 per litre,
it should have been disclosed when and
from which person such extra value was
charged.
Without specific instances of this
kind and without informing the material
which is sought to be read against the
petitioner in support of these charges, no
proper effective defence or reply was
possible. The only thing, which the
petitioner could have done, was to make
an equally vague denial that he was not
guilty of these charges, which ultimately
would lead nowhere. Levelling of charge
is easy, proving of charge is another
matter. A person can be punished for
proved charges and not for levelled
charges. The standard of proof may vary
but nevertheless proof must be there. If
evidence is there to prove charges, this
Court will not go into sufficiency of the
evidence. But a finding based on no
evidence
is
not
sustainable.
1 All]. Hari Nandan Vs. State of U.P. & Ors.
41
In the circumstances, we find that the
impugned order is based on no material. The
writ petition is allowed. The impugned order
dated 22.8.2005 is quashed."
13. The decision in Smt. Alka Rani's
case applies to the facts of the case in hand,
as in this case also allegations are vague and
specific instances and material sought to be
read in support of the allegations against the
petitioner have not been mentioned. If no
material is mentioned in the suspension
order then substituting the material in the
counter-affidavit would be of no help to the
respondents. We further find that along with
the suspension order no show-cause notice
had been issued to the petitioner directing
him to show-cause as to whey his fair price
shop
licences/agreement
may
not
be
cancelled. The impugned suspension order is
vitiated on this ground alone being in
violation of mandatory requirements of G.O.
Dated 29.7.2004.
14. For the aforesaid reasons, we are
in agreement with learned Counsel for the
petitioner that the impugned suspension
order is vague and on the basis of which
petitioner's fair price shop licence/agreement
could not be cancelled and the impugned
order deserves to be quashed.
15. In the result, this writ petition
succeeds and is allowed. The impugned
suspension order dated 25.5.2005 passed
by respondent No. 2, Annexure-1 to the
writ petition, is quashed"
12. In Abu Baker Vs. State of U.P.
and others 2010 (6) ADJ 339, this court
had held as follows: -
"There is no material on record
indicating either the petitioner was given
any opportunity to cross-examine the
witness who had deposed against him or
the copies of the statements of witnesses
so recorded were furnished to him. Thus
what follows from the above discussion is that
the petitioner has been penalised on the basis
of the statements of Antodaya and BPL card
holders recorded behind his back although
neither the copies of the statements of the
aforesaid witnesses were furnished to the
petitioner nor he was given any opportunity to
cross-examine the witness so examined."
13. Applying the ratio of the law
laid down in the aforesaid case, the court
finds that the inquiry proceedings were
conducted in flagrant defiance of the
Government Order dated 29.7.2004 and
the law laid down by this Court and
therefore, the case of the petitioner was
severely prejudiced thereby making the
impugned orders dated 29.09.2012 and
16.01.2013 unsustainable in law.
14. The writ petition succeeds and is
hereby allowed. The orders impugned
dated 29.09.2012 and 16.01.2013 are
hereby quashed. However, it shall be open
for the respondents to pass fresh orders in
the light of the observations made
hereinabove and in accordance with law
within a period of two months from the
date of the production of the certified
copy of this order. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 22824 of 2014
Hari Nandan
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Moti Lal, Smt. Meera