# Manoj Kumar Yadav v. State of U.P. & Ors. 1654 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2019) 2 ILRA 1653
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Writ- C No. 4329 of 2019
- **Bench:** Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-yadav-v-state-of-u-p-ors-1654-indian-law-reports-allahabad-series-44622
- **Pages:** 4

## Headnote

C.S.C., Sri Ramesh Chandra Upadhyay.

A. Fair price shop licence - Cancellation -
Charges should be clear - If charges is
vague
then
inquiry
itself
becomes
vitiated. (Para 5)

B. Relevancy of charges - Charges not
only make the noticee clear about his
reply, which he has to give but the notice
should also be absolutely clear as to
what would be the result of the inquiry if
it went against him. (Para 5)
Writ Petition allowed (E-1)
Case relied on :-

## Text

2 All. Manoj Kumar Yadav Vs. State of U.P. & Ors.
1653
year in which such amount becomes
payable.

36.
The
petitioner
having
already deposited a sum of Rs.6,89,000/-
as 50% part payment for 2004-2005 and
having given an undertaking for payment
of remaining 50% amount of Rs.689000/-
which also was paid on 6-3-2006
(Annexure-SA1 to the supplementary
affidavit) the liability towards payment of
excise duty had been duly discharged as
per the demand notice and the company
was not liable for payment of penalty or
interest in terms of the specific provisions
of the Rehabilitation Scheme."

8. The necessary corollary to the
enunciation of the statutory position noticed
above would be that the liability of the
petitioner insofar as ESI dues are concerned
would be governed exclusively by the
provisions made in the Sanctioned Scheme
in that respect. That Scheme admittedly
absolves the petitioner from the liability
towards interest and penalties under the Act.
That damages are penal in character cannot
possibly be doubted in light of the decision
of the Supreme Court in ESI Corp. Vs.
HMT Ltd.3 where it was held: -

"16. It is a well-known principle
of law that a subordinate legislation must
conform
to
the
provisions
of
the
legislative Act. Section 85-B of the Act
provides for an enabling provision. It does
not envisage mandatory levy of damages.
It does not also contemplate computation
of quantum of damages in the manner
prescribed under the Regulations.

17. The statutory liability of the
employer is not in dispute. An employee
being required to be compulsorily insured,
the employer is bound to make his part of
the contribution. An employee is also
bound to make his contribution under the
Act. But the same does not mean that levy
of damages in all situations would be
imperative.

18. Section 85-B of the Act uses
the words "may recover". Levy of
damages thereunder is by way of penalty.
The legislature limited the jurisdiction of
the authority to levy penalty i.e. not
exceeding
the
amount
of
arrears.
Regulation 31-C of the Regulations,
therefore, in our opinion, must be
construed keeping in view the language
used in the legislative Act and not dehors
the same."

9. In light of the legal position
noticed above, the Court is of the
considered view that the impugned
demand insofar as it places a burden of
interest and damages upon the petitioners
cannot be sustained.

10. The petition is accordingly
allowed. The impugned demand dated 2
April 2004, insofar as it imposes a
liability towards payment of interest and
damages upon the petitioner shall stand
set aside.
----------

(2019)10ILR A 1653

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ- C No. 4329 of 2019

Manoj Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri M.S. Chauhan.

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Upadhyay.

A. Fair price shop licence - Cancellation -
Charges should be clear - If charges is
vague
then
inquiry
itself
becomes
vitiated. (Para 5)

B. Relevancy of charges - Charges not
only make the noticee clear about his
reply, which he has to give but the notice
should also be absolutely clear as to
what would be the result of the inquiry if
it went against him. (Para 5)
Writ Petition allowed (E-1)
Case relied on :-
1. Anant R. Kulkarni Vs Y.P. Education Society
& ors. (2013) 6 SCC 515.
2. Gorkha Security Services Vs Govt. (NCT of
Delhi) & ors. (2014) 9 SCC 105.
 (Delivered by Hon'ble Siddhartha
Varma, J.)

1. Upon a complaint being made by
one Sunil Kumar Maurya on the telephone
that the petitioner, who was a Fair Price
Shop dealer, had in the month of May 2018
not distributed the essential commodities
but had sold them out in the open market,
an inspection was made by the Supply
Inspector on 26.5.2018. Thereafter on
29.5.2018, the petitioner was served with a
show-cause notice and a suspension order.
The petitioner replied to the show-cause
notice on 11.6.2018. However, when the
Sub-Divisional Officer, Bansdeeh, District
Ballia on 18.8.2018 cancelled the licence of
the petitioner to run the Fair Price Shop
which was affirmed by the Appellate
Authority by its order dated 12.12.2018, the
instant writ petition was filed.

2. The contention of learned counsel
for the petitioner is that the show-cause
notice which was served on the petitioner
along with the suspension order did not
contain any specific charge. Even though
the body of the order indicated that the
stock of the petitioner which had to
contain 127 bags of wheat and 87 bags of
rice, had only 46 bags of wheat and 73
bags of rice but no definite charge was
framed. Learned counsel submitted that
after the narration of these facts an effort
was there to formulate a charge which
stated that in the stock of the petitioner 81
bags of wheat were found to be missing.
Learned counsel, therefore, submits that
the charge appeared to be only with
regard to the 81 missing bags of wheat.
Learned counsel further submits that
despite just one charge, a reply was
submitted by the petitioner on 11.6.2018
by which he had stated that in fact there
was no bag which was missing from his
shop and in fact when the stock of the
petitioner's shop was handed over to the
shop to which his shop was attached then
there was not even a single bag of either
wheat or rice which was found to be
missing. However, when the order of the
Sub-Divisional Officer was passed on
18.8.2018, which ran into nine pages,
strangely enough many other charges
were looked into including the charge that
the card-holders were aggrieved by the
distribution which was being made by the
petitioner. Learned counsel, therefore,
submits that the inquiry itself was vitiated
on account of the fact that the charges
were vague. He, therefore, relied upon the
decisions of the Supreme Court in Anant
R. Kulkarni vs. Y.P. Education Society
& Ors., (2013) 6 SCC 515 and in
Gorkha
Security
Services
vs.
Government (NCT of Delhi) & Ors.,
(2014) 9 SCC 105 wherein it had been
2 All. Manoj Kumar Yadav Vs. State of U.P. & Ors.
1655
held that the charge sheet should be very
clear with regard to the charges to which a
delinquent was required to give a reply.
Since learned counsel read-out a certain
portion of paragraph 21 of Gorkha
Security Services (supra), the same is
being reproduced hereasunder:

"..............
The
fundamental
purpose behind the serving of show-cause
notice is to make the noticee understand
the precise case set up against him which
he has to meet. This would require the
statement of imputations detailing out the
alleged breaches and defaults he has
committed, so that he gets an opportunity
to rebut the same. Another requirement,
according to us, is the nature of action
which is proposed to be taken for such a
breach. That should also be stated so that
the noticee is able to point out that
proposed action is not warranted in the
given case, even if the defaults/breaches
complained of are not satisfactorily
explained. ..........."

3. The contention, therefore, of the
petitioner was that when the charge was
just with regard to the 81 missing bags of
wheat then no further charge could have
been dealt with while passing the
impugned order. Learned counsel for the
petitioner further submitted that even the
Appellate Authority did not address to the
submissions made by the petitioner and,
therefore, he prays that the orders
impugned be set-aside.

4.
 Learned
Standing Counsel
appearing
for
the
State-respondents,
however, stated that the charges were so
serious that the licence of the petitioner's
shop had to be cancelled. He further
submits that if the suspension order was
perused, it became clear that there were
many other charges other than the ones
which were enumerated in the order.

5. Having heard learned counsel for
the petitioner and the learned Standing
Counsel, this Court is of the view that the
charges should be very clear. If the
charges are vague then the inquiry itself
becomes vitiated. Charges should not only
make the noticee clear about the reply
which he has to give but the noticee
should also be absolutely clear as to what
would be the result of the inquiry if it
went against him. In the instant case, if
the suspension/show-cause notice dated
29.5.2018 is perused, it appears that even
though stock of both rice and wheat were
found to be short, the show-cause notice
was only with regard to the missing 81
bags of wheat. Further if the impugned
order dated 18.8.2018 passed by the SubDivisional Officer is perused, it becomes
still further clear that the Sub-Divisional
Officer had not confined to the charge
which was imposed against the petitioner.
The Sub-Divisional Officer had travelled
into various other complaints which had
probably been there against the petitioner.

6. Under such circumstances, the
Court is of the view that when the charge
itself was just one in number and that had
been replied to by the petitioner then the
other charges which could have been
gleaned out from the suspension order or
from some other record, could not have
been taken into account for terminating
the licence of the petitioner.

7. In view of the above, the writ
petition is, allowed. The order dated
18.8.2018 passed by the Sub-Divisional
Officer, Bansdeeh, District Ballia and the
order dated 12.12.2018 passed by the
Commissioner,
Azamgarh
Division,
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
Azamgarh
are
quashed.
A
further
direction
is
issued
to
the
State
Government that they should advise their
officers that when they issue show-cause
notices then they should enumerate the
charges properly. They should not be
merged with the details of the complaints
and the inspection report. In this regard
the State Government may issue a
Government Order to all the concerned
officials. A copy of this order may be sent
to the Secretary (Food & Civil Supplies),
Government of Uttar Pradesh, Lucknow
through the Registrar General of this
Court.
----------

(2019)10ILR A 1656

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.07.2019

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ- C No. 3835 of 2012

Sunil Singh & Ors. ...Petitioners
Versus
Kashi & Ors. ...Respondents

Counsel for the Petitioners:
S.A. Lari.

Counsel for the Respondents:
C.S.C.

A. Land Revenue Act, 1901 - Section 28 -
Correction
of
map
-
Necessity
of
examination of reporting authority -
Collector solely relied upon report of
Naib Tahsildar, but no recital to the
effect that Naib Tahsildar ever appeared
and got examined - Mechanism must not
only be effective, but also just, fair and
objective. (Para 7)
B. Basic rule of procedure - Just, fair and
proper
procedure
-
Genuineness
of
report to be proved - Truly authorities
are not the Court of Justice in strict
sense of civil court but authorities, who
are required to adjudicate any point or
issue, it has to apply basic rules of
procedure - If a report or an order is
placed and relied upon, its genuineness
is required to be proved. (Para 8)

C. Rule of Justice - It imbibes within it a
mechanism that makes access to Justice
not only easy and speedy, but efficacious
and authoritatively forceful. (Para 9)

Writ Petition allowed (E-1)

Cases relied on :-
1. Anita Kushwaha Vs Pushp Sudan (2016) 8
SCC 509.

(Delivered by Hon'ble Ajit Kumar, J)

1. List is being revised. Nobody is
present on behalf of heirs of respondent
no. 1 who have already been brought on
record and are represented by one Sri
Ram Jatan Yadav, learned Advocate.

2. Learned Standing Counsel is
present but he has not filed any counter
affidavit on behalf of respondent nos. 2
and 3. Despite time granted for the said
purpose, the matter is of the year 2012
and so the Court proceeds to hear and
decide the writ petition.

3. Heard learned counsel for the
petitioners and learned Standing Counsel.

4. The present writ petition arises
out of proceeding under Section 28 of the
U.P. Land Revenue Act, 1901 wherein,
the application of the deceased respondent
no. 1 for correction of map came to be
allowed on the basis of report submitted