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Judgment
Amit Seth, J
Heard on the question of admission.
The instant writ petition has been filed by the petitioner challenging the order dated 01/08/2025 passed by the Sub Divisional Officer (Revenue), Sub Division, Karera, District Shivpuri, whereby, fair price shop allotment of the petitioner has been suspended.
Learned counsel for the petitioner submits that impugned suspension order dated 01/08/2025 does not disclose the irregularities committed by the petitioner and, therefore, it is non-speaking order and unsustainable in the eyes of law. Learned counsel for the petitioner further submits that in terms of clause 16 (3) of Madhya Pradesh Public Distribution System (Control) Order, 2015 (for brevity, Control Order, 2015), it is incumbent upon the authority to issue show cause notice within a period of 10 days from the date of issuance of order of suspension of fair price shop and, thereafter, as far as possible, pass final order within a period of three months. He further submits that in case, inspite of lapse of 10 days, no show cause notice is issued by the shop allotment authority, then the order of suspension stands revoked automatically, He submits that the suspension order was issued on 01/08/2025, but till date no show cause notice has been issued and therefore the order of suspension of the fair price shop of the petitioner is deemed to have been revoked by operation of law.
He further submits that in the instant case inspection of the fair price shop was carried out by the Shop Allotment Authority/SDO and he himself has passed the order of suspension of fair price shop and therefore the Shop Allotment Authority/SDO has acted as a " Judge in his own cause" by passing the order of suspension which is impermissible in view of the judgement dated 16/11/2021 passed in Civil Appeal No. 8223 of 2009 by the Apex Court in the case of Chairman, State Bank of India & Anr. vs. M.J. James by referring to para 22. Accordingly, he submits that impugned suspension order dated 01/08/2025 being illegal and unsustainable in the eyes of law for non-compliance of provision of sub clause 3 of clause 16 of Control Order, 2015 deserves to be set aside.
On the other hand, learned State counsel for the respondents submits that order of suspension of fair price shop dated 01/08/2025 impugned in the instant writ petition is appealable before the Collector in terms of clause 17 of Control Order, 2015. He further submits that Sub Divisional Officer being shop allotment authority is competent to suspend the fair price shop of the petitioner, there is no provision in the control order 2015 providing for automatic revocation of the order of suspension of the fair price shop, the contention therefore advanced by the petitioner's is unacceptable, the petitioner has been prima-facie found to have violated the terms of the Control Order 2015, therefore an FIR has been registered against the sales man and assistant sales man of the shop. Pending the enquiry the order of suspension has been passed which is interim in nature and final order is yet to be passed by the authority, the petition is not maintainable at this stage and therefore deserves dismissal.
No other point has been pressed by the learned counsels appearing for the parties.
Heard learned counsels for the parties and perused the material available on record.
The issues arising for consideration in the instant writ petition is whether failure on the part of Shop Allotment Authority/SDO to issue show cause notice within a period of 10 days from the date of passing of the suspension order would entail automatic revocation of the order of suspension ?
The scheme of clause 16 of Control Order, 2015 reads as under :-
"16. Punishment and Penalty.-(1) In case of contravention of any provision of Central / State order or this order, the fair price shop authority letter may be suspended or cancelled and security amount may be forfeited wholly or partially by shop allotment authority. In such case, forfeited amount shall be recoverable from guilty employee of concerning institution.
(2) In case of violation under clause 13 for quantity more than 10 percent of the monthly allocation or repetition of violation under the same clause, a person shall mandatorily be prosecuted under section 7 of Essential Commodities Act, 1955 (No. 10 of 1955)
(3) In case of suspension of a fair price shop, the Fair price shop allotment authority shall issue show cause notice to the concerned fair price shop within 10 days and as far as possible, pass final order within three months.
(4) Fair price shop allotment authority, after giving reasonable opportunity to fair price shop to submit its representation in writing and following principle of natural justice, may cancel authority letter mentioning the reason thereof:
Provided that, Fair price shop allotment authority shall not allot that fair price shop to any new society/institution till the final disposal of the appeal.
(5) During suspension/cancellation of a fair price shop. Fair price shop allotment authority shall make alternative arrangement from a nearby fair price shop to ensure distribution of commodities to card holders attached with such shop:
Provided that, a fair price shop of rural area shall not be attached with a fair price shop in urban area and vice-versa.
(6) If any essential commodity is diverted or distributed to any ineligible person by authorised agency/fair price shop owner, the price thereof shall be recovered, from responsible salesperson / employee/ person at the rate of prevailing market price or economic cost (after reducing cost price), whichever is higher. Such amount shall be recoverable as an arrear of land revenue.
(7) Shop allotment authority may order, in writing, to institution to remove the salesperson of fair price shop, if found guilty, from duties of distribution of commodities of Public Distribution System. Such order shall be binding on institution and the said salesperson shall not be appointed as salesperson in any other fair price shop.
(8) On finding an irregularity in operation of a fair price shop, if it is expedient in the opinion of the Collector, prosecution against chairman or head of the society / salesperson / employee of institution may be initiated.
(9) If any action has been contemplated under the provisions of this order or Co-operative Act against allottee Co-operative society by concerning Deputy Commissioner-cum-Sub Registrar/assistant Commissioner-cum-Assistant Registrar, he shall immediately inform the Fair price shop allotment authority in writing."
Perusal of sub clauses (1), (2), (3), (4) and (5) of clause 16 of Control Order, 2015 reveals that order of suspension passed initially by the shop allotment authority is a preliminary order and thereafter on issuance of show cause notice and affording opportunity to the concerned, final order is required to be passed as far as possible within a period of three months. The said clauses further postulates that the during the suspension/cancellation of the fair price shop, an alternative arrangement from a nearby fair price shop to ensure distribution of commodities to card holders attached with such shop is required to be made. Even there is no mandatory time line for passing of the final order is provided to be made as the legislature has consciously used the words " as far as possible, pass final order within three months".
Sub Clause (3) of the control order 2015 providing that "In case of suspension of a fair price shop, the Fair price shop allotment authority shall issue show cause notice to the concerned fair price shop within 10 days" though uses the word "shall" however the mere use of word "shall" would make the provision mandatory or it would be directory in nature depends upon whether any consequence of non-compliance is provided in the statute itself or not.
The Apex Court in AIR 1961 SC 849 (Banwarilal Agarwalla vs. State of Bihar & Ors.) has held that where the consequence of action /non action is provided under the statute itself then the same is ordinarily held to be mandatory and when such consequence is not provided then the same is held to be directory, the relevant para of the judgment in the case Banwarilal (supra) reads as under:
"6. It was not disputed before us that when the Regulations were framed, no Board required under S. 12 had been constituted and so, necessarily there had been no reference to any Board as required under S. 59. The question raised is whether the omission to make such a reference make the rules invalid. As has been recognised again and again by the courts, no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non-observance thereof involves the consequence of invalidity or only directory, i.e., a direction the non-observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case the court has to decide the legislative intent. Did the legislature intend in making the statutory provisions that non-observance of this would entail invalidity or did it not? To decide this we have to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same. In the present case we have to determine therefore on a consideration of all these matters whether the legislature intended that the provisions as regards the reference to the Mines Board could be contravened only on pain of invalidity of the regulation."
In the instant case, sub clause 3 of clause 16 of Control Order, 2015 does not provide for any consequence for non-issuance of show cause notice within the period of 10 days, neither there is any provision for deemed/automatic revocation of order of suspension provided. If the interpretation of clause 16 (3) of the control order as advanced by the counsel appearing for the petitioner is accepted, then the same would lead to a situation that even if the fair price shop operating society/salesman etc. are found to be prima-facie guilty of mis-appropriation of civil supplies issued under the Public Distribution System and found to have prima-facie violated the provisions of the Essential Commodities Act and the provision of the Control Order 2015 and their shop allotment authority is suspended and enquiry/investigation is pending against them, then also just because no show cause notice is not issued to them within 10 days of passing of the order of suspension, then they would again start the operation of the fair price shop just after 10 days, without even the enquiry against them being complete and without they being exonerated of the charges. Had it been the intention of the legislature then there was no occasion for providing for Clause 16 (5) which reads as follows: "During suspension/cancellation of a fair price shop. Fair price shop allotment authority shall make alternative arrangement from a nearby fair price shop to ensure distribution of commodities to card holders attached with such shop".
1 4 . Thus, in the considered opinion of this Court, the provision contained in Sub Clause (3) of the control order 2015 providing for issuance of a Show Cause Notice within 10 days cannot be said to be mandatory and the failure of the Shop Allotment Authority/SDO in not issuing the show cause notice within a period of 10 days from the date of issuance of suspension order of fair price shop would not entail automatic revocation of the suspension order.
Further submission of the learned counsel for the petitioner is that the Shop Allotment Authority/SDO has acted as a Judge in his own Cause in conducting the spot inspection / enquiry and then passing the order of suspension, thereby vitiating the order of suspension of the fair price shop also deserves to be stated to be rejected. It is well settled in law that appointing / disciplinary authority prior to imposition of order of penalty can hold an enquiry himself or can appoint an enquiry officer to conduct an enquiry and then submit a report to him for taking further disciplinary action. In the instant case, admittedly the shop allotment authority of the petitioner is the SDO and he is the authority competent to suspend/cancel the shop allotment of the petitioner under Clause 16 of the control order 2015, under clause 16 the enquiry contemplated is also to be done by the shop allotment authority. If he has conducted the inspection/enquiry and then passed the order of suspension the same is in accordance with law. The proposition laid down by the Apex Court in the case of Chairman, State Bank of India (supra) relied upon by the petitioner is not applicable in the given facts and circumstances of the present case as the SDO had exercised power of shop allotment authority conferred under Control Order, 2015.
The further argument raised by the petitioner is that the suspension order dated 01/08/2025 does not spell out irregularities committed by the petitioner is also not born out from the bare reading of the impugned order itself. The impugned order clearly states that for the irregularities committed by the petitioner inspection was carried out by the Sub Divisional Officer and District Supply Officer and thereafter FIR has also been registered against the Salesman and Assistant Salesman on 08/07/2025 and for that reason the order of suspension of the fair price shop has been passed. It can therefore, not be said that order dated 01/08/2025 does not spell out the reasons for suspension of fair price shop of the petitioner. The said argument advanced by the learned counsel appearing for the petitioner therefore stands rejected.
Since the order of suspension impugned in the petition is interim in nature and the Shop Allotment Authority/SDO is required to pass final order after issuance of show cause notice to the petitioner. Therefore, the Shop Allotment Authority/SDO shall now issue the show cause notice to the petitioner within a period of 10 days from the date of receipt of certified copy of this order passed today and thereafter pass final order in accordance with law after affording opportunity of hearing to the petitioner.
Needless to observe that this Court has not examined the merits/de-merits of the allegations made against the petitioner. The final order is required to be passed by the Shop Allotment Authority/SDO strictly in accordance with law.
With the aforesaid, admission of petition is declined, the same stands dismissed.