Allowed

Md. Zainuddin v. The State Of Bihar and Ors.

Patna HC14 Nov 2013CWJC/18236/2013

Case brief

AI extract

What is this about?

The High Court held that under the P.D.S. Licensing Order, 2007, suspension of a licence is strictly limited to ninety days. Imposing suspension for longer periods and then cancelling the licence for the same dereliction violates the principle against double punishment. The impugned orders were set aside.

What did the court decide?

The impugned orders cancelling the license and dismissing the appeal were set aside. The license and works of the petitioner were ordered to be restored forthwith.

Md. Zainuddin Vs The State Of Bihar and Ors. — Service and Employment | Patna HC (2013)

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Patna High Court CWJC No.18236 of 2013 (2) dt.14-11-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Civil Writ Jurisdiction Case No.18236 of 2013

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Md. Zainuddin, son of Md. Ashfaque, resident of Village- Gamraho, Police Station- Mahesi, District- Saharsa.

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.... .... Petitioner

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Versus 1. The State of Bihar. 2. The District Magistrate, Saharsa. 3. The Sub- Divisional Officer, Sadar, Saharsa. 4. The District Supply Officer, Saharsa. 5. Block Supply Officer, Block- Mahesi, District- Saharsa. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Sajid Salim Khan, Advocate For the Respondents : Mr. Sanjay Prakash Verma, A.C. to G.A. 3 ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH

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ORAL ORDER

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2 14-11-2013 Petitioner is a fair price shop dealer under the Public Distribution System (for brevity `P.D.S.’) and has a licence as such under the P.D.S. Licensing Order, 2007 issued by the State Government pursuant to Public Distribution System (Control) Order, 2001 issued by the Central Government. Upon certain derelictions detected the petitioner’s licence was suspended by the order of the Sub-Divisional Officer, Sadar, Saharsa, on 09.10.2009. Let it be noted that the Sub-Divisional Officer is the licensing authority. Thereafter, the said licensing authority, after making full enquiry, submitted his report to the District Selection Committee recommending revocation of suspension. It seems instead of revoking the suspension, which suspension continued,

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Patna High Court CWJC No.18236 of 2013 (2) dt.14-11-2013

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on 04.05.2011 the Sub-Divisional Officer, Sadar, Saharsa, upon recommendation of the District Level Selection Committee, cancelled the licence of the petitioner.

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The petitioner came to this Court but was relegated to the appellate forum. He then preferred an appeal before the Collector-cum-District Magistrate, Saharsa, which appeal has been dismissed by order dated 11.09.2012 passed in Supply Appeal Case No. 115/ 2011-12, which is Annexure 1 to the writ petition. Petitioner is aggrieved by the said orders.

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Learned counsel for the petitioner submits that under the provisions of the P.D.S. Licensing Order, 2007 as issued by the State Government with concurrence of the Central Government in exercise of powers delegated to it under the P.D.S. (Control) Order, 2001, Clause 7 contains powers of disciplinary control.

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The submission of learned counsel for the petitioner would be that once upon certain derelictions disciplinary action has to be taken, there are only two alternatives, either the punishment can be by way of suspension, which would be only for a period of ninety days, or it would be cancellation, but under no such circumstances, it can be both. It is for the licensing authority to choose and select what action has to be taken and once a choice

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Patna High Court CWJC No.18236 of 2013 (2) dt.14-11-2013

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is made then it cannot be changed; inasmuch as once the licence is suspended and the period of suspension runs its due course then for the same dereliction, the licence cannot be cancelled as that would be punishing the delinquent twice for the same dereliction under the same provision.

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Learned counsel for the petitioner relies upon a judgment of this Court in similar circumstance in case of Pappu Kumar Singh vrs. State of Bihar & Ors., being C.W.J.C. No. 14703 of 2009, disposed of on 27.11.2009 and upon a Division Bench’s judgment of this Court in case of Shiv Chandra Jha vrs. Harideo Jha & Ors., reported in 2013(3)P.L.J.R. 956, in which identical view has been taken.

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Having heard the parties and with their consent, this writ petition is being disposed of at this stage itself.

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In my view, the law is now settled by the said decision of the Division Bench affirming the view taken in several cases. Under the P.D.S. Licensing Order, 2007, as issued by the State Government for any dereliction, there are only two actions that can be taken. They are in the alternative and found in Clause 7 of the Order. Licence can either be suspended or it can be cancelled. There is no provision for any interim suspension pending cancellation as was there earlier in the Bihar Trade Article

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Patna High Court CWJC No.18236 of 2013 (2) dt.14-11-2013

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(Licences Unification) Order, 1984. Once the licensing authority decides to suspend the licence then suspension cannot continue beyond ninety days. This period, however, can be cut short as envisaged under Clause 7(v) of the Order. This is so because this clause provides that having suspended the licence, licensing authority will give a report to the District Level Selection Committee for earlier revocation. Thus, if the report is accepted, the suspension can be revoked prior to the maximum period of ninety days. Thus, the District Level Selection Committee has no alternative but either to accept the recommendation of the licensing authority to revoke the suspension or reject the same so as to permit the suspension to continue for a maximum period of ninety days, but once having done so, the licence then or thereafter for the same dereliction cannot be cancelled.

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From the facts noted above, it is apparent that the petitioner’s licence was suspended on 09.10.2009 and was ultimately cancelled on 04.05.2011. The suspension continued for almost one and half years against the statutory provisions. In view of the facts and the statutory provisions, I have no option than to hold that not only the continued suspension for such a long period was wholly illegal, but the cancellation was also wholly without jurisdiction.

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Patna High Court CWJC No.18236 of 2013 (2) dt.14-11-2013

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Accordingly, this writ petition is allowed and the impugned order of the Sub-Divisional Officer, Sadar, Saharsa, cancelling the licence of the petitioner and that of the Collectorcum-District Magistrate, Saharsa, dismissing the appeal, as noted above, are set aside. The licence and works of the petitioner shall be restored forthwith.

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(Navaniti Prasad Singh, J)

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MPS/-

Md. Zainuddin v. The State Of Bihar and Ors.

Case brief

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Md. Zainuddin v. The State Of Bihar and Ors.

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