MOHD HUSSAIN Vs. STATE OF U P

JUDGEMENT

(1.) PETITIONER before this Court is a fair price shop agent. He was served with a show cause notice dated 05.05.2008 alleging irregularities in distribution of the essential commodities. The aforesaid charge memo was based on the surprise inspection of the shop of the petitioner. The petitioner submitted a reply to the charges and denied the allegations made in the show cause notice. The reply submitted by the petitioner did not find favour with the Sub Divisional Magistrate and he therefore proceeded to cancel the agency of the writ petitioner on 30.07.2008. Not being satisfied with order order so passed, petitioner preferred an appeal under Section 28 (3) of the Government Order applicable, being Appeal No. 380 of 2007-08. In order to keep the record straight it may be stated that the petitioner filed writ petition no. 42256 of 2008 before this Court which was dismissed on the ground that statutory alternative remedy by way of appeal is available. A direction was issued to the authority concerned to decide the interim stay application, if filed, within the time specified. Since the appeal filed by the writ petitioner was not decided, petitioner filed another writ petition no. 58810 of 2008 which was disposed of vide order dated 15.11.2008 with a direction upon the Commissioner to decide the appeal within six weeks from the date of production of a certified copy of the order. The Commissioner under the impugned order dated 11.12.2008 has dismissed the appeal after recording that the explanation furnished by the petitioner qua the charges was not satisfactory. The order of the Sub Divisional Magistrate has been approved. Counsel for the petitioner submits that none of the grounds raised in the memo of appeal have been considered by the Commissioner. The Commissioner has mechanically dismissed the appeal only after recording that the Sub Divisional Magistrate has held an enquiry and thereafter cancelled the agency of the petitioner. Counsel for the petitioner contends that the power conferred upon the Commissioner under Clause 28 (3) is wide enough to include adjudication of factual issues also and, therefore, if the petitioner had challenged the correctness or otherwise of the findings recorded by the Sub Divisional Magistrate qua the charges being found proved which was based on material documentary evidence, the appellate authority should have examined the same. It is not sufficient for the Commissioner to hold that the enquiry has been done by the Sub Divisional Magistrate and who has found explanation un-satisfactory. It is, therefore, contended that the Commissioner has failed to exercise his jurisdiction qua examination of factual issues. Faced with the aforesaid contention, Standing Counsel on behalf of the State respondents submits that the Commissioner has examined the matter on the basis of the records and, therefore, this Court may not interfere with the order passed by the Commissioner. I have heard counsel for the parties and have gone through the records of the writ petition. From the memo of appeal it is apparently clear that the petitioner had raised various factual grounds for the purposes of challenging the finding recorded by the Sub Divisional Magistrate. It was stated that the stock register and sale register produced by the writ petitioner, established beyond doubt that the charges were incorrect. He also made an allegation that the enquiry was not in free and fair manner. All the aforesaid issues have completely been ignored by the Commissioner while deciding the appeal. He has only fallen back upon the order of the Sub Divisional Magistrate to hold that petitioner is guilty of the charges. I am of the considered opinion that the power of the Commissioner being wide enough to include examination of factual issues also, he was under obligation in the facts of the case to consider the factual pleas raised by the petitioner. The Commissioner has failed to exercise his jurisdiction to that extent while confirming the order of the Sub Divisional Magistrate. In such circumstances the order passed by the Commissioner is legally not sustainable and is hereby quashed. The appeal is restored to its original number. Let the Commissioner take a fresh decision thereon, in light of the observations made, preferably within three months from the date a certified copy of this order is filed before him. Till then status quo as of date in respect of the shop in question shall be maintained and the same shall abide by the final orders to be passed by the Commissioner, as indicated above. Writ petition is allowed subject to the observations made herein above.