Disposed

Mahendra Sahu v. State of Odisha

Orissa HC11 Dec 2023WP(C)/39644/2023

Case brief

AI extract

What is this about?

The petitioner, a PDS retailer, challenged the suspension of his license and withholding of quota allegedly based on false allegations. The court found the matter premature as disciplinary proceedings were pending and granted time for the authority to dispose of petitioner's replies.

What did the court decide?

Direction to the Licensing Authority to dispose of the petitioner's show cause replies within four weeks and produce copies for submission.

Mahendra Sahu Vs State of Odisha — Service and Employment | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.39644 of 2023

Mahendra Sahu

....... Petitioner

-Versus-

State of Orissa and others .….. Opposite Parties

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For Petitioner : Mr. S.K. Sarangi, Senior Advocate
and Mr. A.K. Nayak, Advocate
For Opp. Parties : Mr. J. Katakia,
(Addl. Govt. Advocate)
(for O.P. Nos. 1 to 5)
-----
CORAM: JUSTICE SANJAY KUMAR MISHRA

Date of Judgment: 11.12.2023

S.K. Mishra, J.

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The Petitioner, who has been appointed as a Retailer to deal

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with distribution of PDS commodities, has preferred this Writ Petition with the following prayer:

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“ PRAYER

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That the petitioner, therefore, humbly prays that your Lordships shall graciously be pleased to admit this writ

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W.P.(C) No.39644 of 2023

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application and issue Rule Nisi directing the opposite parties to show cause:

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(a) As to why the Opp. Parties shall not be directed to revoke the suspension of PDS license of the petitioner; and

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(b) As to why they shall not be directed to allow the petitioner to lift the quota of Antordaya Rice and Kerosene oil for distribution amongst the consumers; and

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And on their failure to show cause or on showing

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insufficient cause, His Lordships shall graciously be pleased to make the said Rule the said Rule absolute by way of issuance of a writ of Mandamus or any other appropriate writ or writs, order or

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orders as this Hon’ble Court deems fit and proper.”

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Though this matter has been listed under the heading “Fresh Admission, on consent of the learned Counsel for the Parties, the matter is taken up for hearing and final disposal.

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Heard Mr. Sarangi, learned Senior Counsel being assisted by

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Mr. A.K. Nayak, learned Counsel for the Petitioner so also Mr. Katakia,

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learned AGA for the State Opposite Party Nos.1 to 5.

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Mr. Sarangi, learned Senior Counsel for the Petitioner drawing

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attention of this Court to the documents appended to the Writ Petition submits, based on false allegations made by few villagers, the Authority concerned i.e. Sub-Collector-Cum-Licensing Authority, Puri (Opposite Party

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W.P.(C) No.39644 of 2023

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No.3), vide letter dated 08.11.2023 has approved the proposal given by the B.D.O., Satyabadi for tagging of the Petitioner retailer under Dasbidhyadharpur G.P. Further, since October, 2023, the supply of PDS commodities to the Petitioner has been stopped by the Marketing Inspector without any notice or giving any opportunity to the Petitioner before taking such action.

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Mr. Sarangi further submits, after obtaining the documents

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under the Right to Information Act, 2005, it came to the notice of the Petitioner that the said action has been initiated against him based on false allegations made by few villagers. On being asked to Show Cause by the Opposite Party No.3, the Petitioner has already submitted his explanation on 23.11.2023, followed by another explanation dated 25.11.2023 with regard

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to alleged irregularity in supply of kerosene and the same are pending for consideration with the Opposite Party No.3.

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Mr. Sarangi, learned Senior Counsel submits, though a prayer

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has been made to revoke the suspension of PDS license of the Petitioner and

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there is a provision of Appeal in terms of Clause-19 of the Public Distribution System (Control) Order, 2016, shortly, the Order, 2016, no action has yet been taken for suspension or cancellation of PDS license of the Petitioner in terms of Clause-17 of the Order, 2016. That apart, from

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October, 2023, the supply of PDS commodities to the Petitioner has been

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W.P.(C) No.39644 of 2023

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abruptly stopped by the Marketing Inspector without any notice. Also, action has been contemplated against his client to cancel the PDS license, being motivated by a false allegation made by few villagers. The Petitioner, being remediless, has approached this Court in form of present Writ Petition.

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In view of such submissions made by the learned Senior Counsel for the Petitioner, before delving in to the issue involved in the

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present lis, this Court thinks it apt to reproduce below the Clause-17 of the

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Order, 2016), which deals with consequences for contravention of conditions

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of license or Control Orders:

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“ 17. Contravention of conditions of licence or Control orders.

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(1) No holder of a license issued under this Order, or his agent or

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servant or any other person acting on his behalf or placed by him in physical charge of stock shall contravene any of the terms or conditions of the license or of any control Order issued under the Act.

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(2) If any such person contravenes any of the said terms or conditions, without prejudice to any other action that may be taken against him/her, the license shall be cancelled and the security deposit may be forfeited in full or in part:

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Provided that no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case and if he desires of personal hearing against the proposed cancellation and forfeiture.

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(3) Upon compliance with all obligations under the license by the licensee, the amount of security deposit or such part thereof, which is not forfeited as aforesaid, shall be refunded to the

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W.P.(C) No.39644 of 2023

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licensee after termination of the license by the Licensing Authority.

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(4) The Licensing Authority may, by order, without giving prior notice to the Dealer, suspend the license of a Dealer, if a proceeding under sub-clause (1) has been initiated against the dealer, and the said Licensing Authority is satisfied that it is not in the interest of the smooth operation of the Public Distribution System to allow the Dealer to handle the PDS stocks.

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Explanation. - For the purpose of this sub-clause, the proceedings under sub clause (1) shall be deemed to have been initiated on the date of issue of the show-cause notice by the Licensing Authority.

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(5) No prior show cause notice would be required for withholding the allocation of quota to any licensee for a period not exceeding sixty days pending enquiry or investigation against the licensee, if the Licensing Authority has reasons to believe that the licensee has not maintained proper and correct accounts in respect of the quota allocated to him earlier or has diverted the Public Distribution System stocks or committed any other irregularities.

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(Emphasis supplied)

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Any person aggrieved by an order of the Licensing Authority

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passed in terms of Clause-17 of the Order, 2016, may prefer an Appeal as provided in Clause-19 of the Order, 2016. The said Clause is also extracted below for ready reference :

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“ 19. Appeal . - (1) Any person aggrieved by an order of the Licensing Authority refusing to grant or renew or reissue a

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W.P.(C) No.39644 of 2023

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license or suspending or cancelling a license or forfeiting the security deposit or withholding the allocation of quota under the provisions of this order may prefer an appeal before the Appellate Authority within thirty days of the date of receipt of the order.

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(2) The memorandum of appeal should be accompanied by a copy of the license of the appellant and a copy of the order against which appeal has been preferred.

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(3) Any appeal preferred after the expiry of the aforesaid period may be summarily rejected by the Appellate Authority.

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(4) No such appeal shall be disposed of unless the aggrieved person has been given a reasonable opportunity of being heard in person.

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(5) Pending disposal of an appeal, the Appellate Authority may direct that the order of the Licensing Authority, against which the appeal is preferred, shall not take effect until the appeal is disposed of . ”

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(Emphasis supplied)

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From the said provisions, as extracted above, it is amply clear

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that in terms of sub-Clause- (4) under Clause-17 of Order, 2016, the Licensing Authority is competent to suspend the license of a dealer without giving prior notice, if a proceeding under sub-Clause (1) has been initiated against the dealer and the Licensing Authority is satisfied that it is not in the interest of the smooth operation of PDS commodities. That apart, in terms of sub-Clause- (5), without prior Show-Cause Notice, the allocation of quota of any licensee can be withheld for a period not exceeding sixty days pending

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W.P.(C) No.39644 of 2023

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enquiry or investigation against the licensee, if the Licensing Authority has

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reason to believe that the licensee has not maintained proper and correct accounts in respect of the quota allocated to him earlier or has diverted the PDS stocks or committed any other irregularities. Admittedly, no action has yet been taken against the Petitioner in terms of sub-Clauses (2) or (4) in Clause- 17 of the Order, 2016.

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At this stage, it would be appropriate to extract below the

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relevant portion from the Show Cause Notice dated 17.11.2023, as to the

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irregularities allegedly committed by the Petitioner.

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“ As per the enquiry report of M.I., Satyabadi Block, you have committed irregularities as mentioned below:-

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You have not displayed updated stock & price declaration board at your retail centre.

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You have misappropriate Q.3.15 AAY rice of AAY ration card bearing no.26110710421 for 9 (nine) months through unauthenticated bill in e-PoS device after death of card holder Mani Behera.

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You have not maintained visitors register at FPS point.

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You have not submitted monthly report return of your FPS to the undersigned.”

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As it seems from the documents appended to the Writ Petition,

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the Authority concerned has acted in terms of sub-Clauses (4) and (5) in Clause-17 of the Order, 2016, before taking any action in terms of subClauses (2) and (4) of the Order, 2016. Hence, this Court is of the view that

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W.P.(C) No.39644 of 2023

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there is no illegality to stop supply of PDS quota in favour of the petitioner since October, 2023 and accord approval of the tagging proposal given by the B.D.O., Satyabadi to avoid PDS dislocation. This Court is of further view that the Writ Petition is premature and not maintainable.

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At this stage, Mr. Sarangi , learned Senior Counsel makes an innocuous prayer to direct the Opposite Party No.3 to deal with the replies submitted by the Petitioner dated 23.11.2023 (Annexure-5) so also Petition

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dated 25.11.2023 (Annexure-7) and dispose of the same within a stipulated

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time frame.

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Mr. Katakia, learned Additional Government Advocate for the State-Opposite Party Nos.1 to 5 has no objection to such prayer of Mr. Sarangi, learned Senior Counsel.

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Accordingly, without expressing any opinion on merit, the Writ Petition is disposed of with a direction to the Opposite Party No.3 to deal with the said replies submitted by the Petitioner and dispose of the same in

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accordance with law within a period of four weeks from the date of production of the certified copy of this Order.

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Since there is no endorsement in the so called replies annexed to

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the Writ Petition as Annexures 5 and 7 , the Petitioner is directed to produce a copy of this Writ Petition with annexures along with the certified copy of this

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W.P.(C) No.39644 of 2023

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order before the Authority concerned within two weeks hence. On being so submitted, the Authority concerned shall do well to deal with and dispose of the same within the period as directed above.

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Urgent certified copy of this order be granted on proper application as per rules.

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(S.K. MISHRA) JUDGE

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Orissa High Court, Cuttack
Dated, 11 th December, 2023/Padma

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Signature Not Verified

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Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUT TACK Date: 13-Dec-2023 07:14:48

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W.P.(C) No.39644 of 2023

Mahendra Sahu v. State of Odisha

Case brief

What is this about?

What did the court decide?

Mahendra Sahu v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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