OUSEPH MARKOSE v. STATE OF KERALA — 1983 DIGILAW 234 (KER)

Judgment :- 1. The petitioners, two Kerosene card holders and residents of Tiruvalla, vitally interested in advancing a public cause complain that the Government, instead of eradicating a social evil have attempted to perpetuate the same by restoring the status quo ante of the fourth respondent after a suspension order pending enquiry had been implemented. The petitioners state that the first respondent, State of Kerala, has no jurisdiction to pass the impugned order and even if jurisdiction is conceded, it has been exercised in clear violation of Clause.18 of the Kerosene Control Order. 2. In order to understand and appreciate the contentions of the petitioners, ft is necessary to state briefly the facts as disclosed from the pleadings and records made available to this Court. 3. Complaints, voiced by many, pressed by an M.L.A, and publicized in the press against the fourth respondent, an authorised wholesale dealer under the Kerosene Control Order swung the Government to swift action when the Minister for Food promptly ordered on 7th March, 1983 "Vigilance to enquire and report" and forwarded on 17th March 1983 some of the complaints to the "Director of Civil Supplies (D C. S.) for immediate necessary action". Similar complaints also were made to the Board of Revenue and the District Collector, Pathanamthitta. On 2-7-1983 the Minister set the alarm by a further querry "why no follow up action has been taken". 4. The audit party attached to the Board of Revenue checked the accounts of the fourth respondent and verified the same with the available records and submitted a report to the Board. The report is revealing as would be seen from the following extracts. "(a) The wholesaler has misappropriated Kerosene oil by manipulation of accounts and by incorrect totalling of the daily sales in the sales register and carrying forward the incorrect total to the Stock register. The quantity thus misappropriated has been worked out as 8963.2 litres." (b) "1100 litres of Kerosene is reduced from the stock on 26-1-1980, though no sales are effected as per the sales register and bill book." (c) "Two sets of bill books are seen used by the wholesaler in the same period." (d) "There are instances where the A. R. Ds. have accounted Kerosene as having been received from this wholesaler without any corresponding issues in the sales register of the wholesaler. The quantity so accounted comes to 12,480 litres." 5. have accounted Kerosene as having been received from this wholesaler without any corresponding issues in the sales register of the wholesaler. The quantity so accounted comes to 12,480 litres." 5. The report was forwarded to the District Collector. On 21-7-1983 the Collector noted that the licence of the fourth respondent be suspended pending detailed enquiry and issued Ext. P1 proceedings suspending the fourth respondent's licence, under Clause.6 of the Kerosene Control Order, 1948. Ext. P1 reads thus: "The Audit party attached to the Board of Revenue (Civil Supplies) checked the accounts of Sri. C. M. Varghese, K.W.D., Tiruvalla Taluk and detected grave irregularities. The following are certain of the irregularities detected by the audit party. (1) The Wholesaler has misappropriated Kerosene by manipulation of accounts by incorrect totalling of daily sales register and carrying forward the incorrect total to the stock register. The quantity thus misappropriated has been worked out as 8963 litres. (2) 1100 litres of kerosene oil are reduced from the stock on 26-1-1980 though no sales are effected as per the sales register and the bill book. (3) Two sets of bill books are seen used by the wholesaler in the same period. Certain receipts accounted by the A. R Ds. have not been accounted in the accounts of the wholesaler. (4) Verification of the sales register of the wholesaler also revealed that issues have been made retailers who are not linked with this wholesaler. The quantity so accounted works out to 8500 litres As there is prima facie case of misappropriation of kerosene oil by manipulation of records by the kerosene wholesaler, Sri. C. M. Varghese, in exercise of powers conferred on me under Clause.6 of the Kerala Kerosene Control 0.1968, I do hereby order suspension of the kerosene wholesale licence of Sri. C. M. Varghese pending detailed enquiry." 6. The order was served on the 4th respondent on 22-7-1983 and on 23-7-1983, the Taluk Supply Officer reported that the order has been implemented, the retail shops delinked, and that the oil company has Keen ordered to stop further issues until further orders. The suspension order thus took effect and the fourth respondent was relieved of his duties as an authorised wholesale distributor. 7. The suspension order thus took effect and the fourth respondent was relieved of his duties as an authorised wholesale distributor. 7. Two days after the suspension, the fourth respondent filed a petition before "The Hon'ble Minister for Civil Supplies, Govt, of Kerala, Trivandrum" praying for stay of the orders of the Collector and for direction to restore status quo. Immediately on the same date, 25-7-1983 the Minister passed an order, "C.S.C. (Civil Supplies Commissioner) may please restore the status quo ante till disposal of the appeal." The Office, rightly brought to the notice of the Minister that the Government cannot give direction to the Civil Supplies Commissioner, who is an appellate authority under the rules and that this would amount to "infringement" or encroachment of the appellate authority's jurisdiction and therefore orders may have to be issued directing the fourth respondent to file the statutory appeal or in the alternative exercise powers under Clause.18 of the Control Order to maintain status quo. The alternate suggestion was approved by the Minister on 28-7-1983. The Minister was not told about his earlier orders and he probably did not remember them either. 8. On 29-7-1983, four days after the suspension, the Government sent a letter to the Director of Civil Supplies staying the orders of the District Collector and restoring status quo ante. The Government's letter is No.13690/D3/82/Food dated 29-7-1983. As per this letter the records were also called for. In strict obedience, the Collector issued formal orders on 2-8-1983 restoring the fourth respondent as a licensee, and a copy of the same is Ext. P2. The fourth respondent's licence thus revived from 2-8-1983. 9. On 10-8-1983, the present OP. was filed; and on 11-8-1983, Justice M. P. Menon issued interim directions to the District Collector not to permit the fourth respondent to function as wholesale dealer pending disposal of the OP. Attempts to vacate the interim order did not succeed and the OP. itself was posted for hearing. The fourth respondent is thus not now functioning as an authorised wholesale dealer in Kerosene. 10. The petitioners challenge the Government communication dated 29-7-1983 and the consequential order of the Collector Ext P2 11. It is not the province of this court to decide about the merits of the case regarding the "guilt" of the fourth respondent at this stage. The fourth respondent is thus not now functioning as an authorised wholesale dealer in Kerosene. 10. The petitioners challenge the Government communication dated 29-7-1983 and the consequential order of the Collector Ext P2 11. It is not the province of this court to decide about the merits of the case regarding the "guilt" of the fourth respondent at this stage. The fourth respondent has vehemently denied every allegation and asserts that he is wholly innocent. This is a matter on which the authorities under the Kerosene Control Order alone can decide after the enquiry. 12. However, two questions arise for determination; (a) whether the Government have got jurisdiction to issue the impugned direction and (b) granting jurisdiction, is there any contravention of any statutory provisions. 13. The Kerala Kerosene Control Order was made in exercise of the powers conferred under the Essential Commodities Act. Admittedly the fourth respondent was a licensee as an authorised wholesale distributor under this Order. Clause.6 of the Order providing for cancellation, suspension and modification of the licence and appeals reads thus: "6. Cancellation, suspension and modification of licence and Appeals. (1) The Commissioner, District Collector or any other Officer authorised by the Commissioner may after giving the wholesale dealer an opportunity of stating his case and for reasons to be recorded in writing (a) modify, suspend or cancel any licence granted under this Order either for any breach of the terms and conditions of the licence or for contravention of the provisions of any order issued by a competent authority under S.3 of the Essential Commodities Act (Act 10 of 1955) which is for the time being enforced or for any other good and sufficient reason: Provided that where the licence is considered necessary to be suspended during the pendency or in contemplation of proceedings for cancellation of his licence, it shall not be necessary to give any such opportunity to the licensee for stating his case. (b) order the realisation of the value of Kerosene found to be short or in excess and (c) order the forfeiture of the whole or any part of the amount remitted by the wholesale dealer as security under sub-clause 5 of Clause.5. (b) order the realisation of the value of Kerosene found to be short or in excess and (c) order the forfeiture of the whole or any part of the amount remitted by the wholesale dealer as security under sub-clause 5 of Clause.5. (2) Any wholesale dealer aggrieved by any Order passed under this clause may, within 30 days from the date of communication of such order appeal (i) in the case of an order passed by the Commissioner, to the Government; (ii) in the case of an order passed by the District Collector, to the Commissioner; (iii) in the case of an order passed by the Officer authorised by the Commissioner, to such authority as the Government may specify in this behalf; and the decision of the Government, the Commissioner, the District Collector or such authority, as the case may be, shall subject to the provisions of Clause.18, be final." 14. Clause.18 empowering the Government to call for records and issue order reads thus: "18. Power to call for Records and issue Order The Government or the Commissioner may call for and examine the records of any order passed by any subordinate authority under the provisions of this Order for the purpose of satisfying themselves or himself as to the legality or to the propriety of such order and may pass such order in reference thereto as the Government or the Commissioner may deem fit: Provided that no order to the disadvantage of any person shall be passed under this clause unless the person concerned is given an opportunity of making any representation, which he may wish to make against such order." 15. Sri. M.N. Sukumaran Nayar appearing for the 4th respondent contended that the power conferred under Clause.18 is not revisional; but an overriding power conferred on the Government for satisfying themselves as to the legality or propriety of any order passed by any subordinate authority and to pass such order in reference thereto as the Government or. Commissioner may deem fit. The power to test the legality or propriety of any order of a subordinate authority is generally conferred on the Government under several statutes and has been understood as a conferment of revisional jurisdiction. The revisional power cannot be confused with an appellate power. Commissioner may deem fit. The power to test the legality or propriety of any order of a subordinate authority is generally conferred on the Government under several statutes and has been understood as a conferment of revisional jurisdiction. The revisional power cannot be confused with an appellate power. It is not as extensive as the appellate power; but limited in its scope and content by the very nature of the functions exercised. 16. While the petitioner's counsel, Sri. Gopalakrishna Pillai contends that the revisional jurisdiction cannot be exercised when an appeal is provided, the respondents' counsel argue that it can be exercised at any time, notwithstanding the right of appeal. It is urged that there may be cases where Government may have to take action when an aggrieved party does not choose to file an appeal or even when the appeal is already time barred. 17. Under the scheme and provisions of the Kerosene Control Order, there are two distinct powers conferred on the Government and the Commissioner, neither overlapping nor displacing each other. The filing of an appeal precludes the exercise of revisional jurisdiction. The revisional powers are thus suspended during the pendency of the appeal. The power revives when the appeal is disposed of and can be exercised to correct the appellate order itself. 18. A suo motu power to revise is the content of Clause.16. It does not contemplate an application by any aggrieved person It does not however prohibit the filing of an application to alert the Government/ Commissioner about the illegality and impropriety. 19. Even though, therefore, the revisional jurisdiction can be invoked in cases where appeals are competent, and can be exercised, when no appeal has been filed, prudence should demand that this reserve power should not invariably be exercised if the aggrieved party has a statutory remedy of appeal. Ordinarily no party should be allowed to bypass the statutory authorities and the appeals to approach the Government in revision. Compelling circumstances, grave urgency and great public interest may be some of the valid criteria for the exercise of revisional jurisdiction against orders initially appealable. It is better in the interests of the purity of administration that the order of the Government/ Commissioner in revision discloses the reasons for the exercise of this power in spite of the availability of the right of appeal. 20. It is better in the interests of the purity of administration that the order of the Government/ Commissioner in revision discloses the reasons for the exercise of this power in spite of the availability of the right of appeal. 20. The power of revision can be exercised to correct even an interlocutory order. "Any order" in Clause.18 cannot be understood as "any final order". An order affecting the rights of any licensee or the public in general, whether interim or final, will come within the range and reach of the expression "any order". 21. Revisional power has however to be exercised with considerable care and caution. The width of a power lies in the restraint of its exercise. This power, as enjoined by Clause.18, can be exercised only after the records are called for and examined. The records of the subordinate authority form the basis of the action. They alone can reveal whether there was an illegality or impropriety. The power cannot therefore be exercised without examining the records. 22. Applying these principles, it can be safely held that the Government is competent to exercise revisional jurisdiction in this case. They have jurisdiction, even though no appeal has been filed against the order of suspension. But the Government acted without calling for or examining the records. An examination of the order passed by the Collector is no substitute for examination of the records of the order. The "records of the order" were not available with the Government when the impugned direction was issued. Clause.18 was thus clearly contravened. 23. It was contended on behalf of the Government that the order disclosed that the suspension order was passed without notice to the 4th respondent and it was therefore in clear violation of Clause.6. According to him the District Collector ought to have suspended the licence only after giving the wholesale dealer opportunity of stating his case. But this was not done. Hence the order of the District Collector was kept in abeyance and status quo ante was restored. Clause.6 provides for suspension as a punishment. This punishment can be imposed only after notice to the aggrieved person. The proviso to Clause.6 however provides for suspension, not as punishment, but "during the pendency or in contemplation of proceedings for cancellation" of the licence. Suspension under the proviso is thus not punitive but preventive. Clause.6 provides for suspension as a punishment. This punishment can be imposed only after notice to the aggrieved person. The proviso to Clause.6 however provides for suspension, not as punishment, but "during the pendency or in contemplation of proceedings for cancellation" of the licence. Suspension under the proviso is thus not punitive but preventive. The objects and reasons for inserting this proviso on 2-12-1975 read thus: "The amendment is for inclusion of a provision enabling competent authorities to suspend the licence of a Kerosene dealer, not as a substantive punishment but as an interim arrangement pending a decision as to what punishment should be awarded to the licensee for irregularities detected in his shop. Usually suspension of licence pending completion of the disciplinary action against the licensee is resorted to only when very serious irregularities which would normally end in cancellation of his licence, are detected. Once such irregularities are detected it will not be in public interest to allow the licensee to function because he would be in a position to assume that, having regard to the nature of the irregularities detected, the competent authority will in all likelihood cancel the licence. Usually it takes two or three months to complete the disciplinary proceeding and to pass final orders after observing all formalities. If the licensee is allowed to continue to deal in Kerosene during the above period he is likely to commit more irregularities on the assumption that the disciplinary action already initiated against him will end in the cancellation of his licence. Hence the amendment." 24. The learned counsel for the 4th respondent frankly and rightly conceded that there is power to suspend pending enquiry apart from imposing punishment of suspension after enquiry. 25. Under the proviso, suspension could be ordered pending enquiry and without giving an opportunity to the aggrieved person. If the Government thought that suspension was ordered as a punishment it was clearly wrong. If the Government thought that the order was bad as no opportunity was given, as contended by the Government Pleader, they flatly ignored the proviso to Clause.6. The order of the Collector did not show "any brand of illegality upon its forehead". One fails to understand how, by reading the order it can be concluded that the order was illegal or improper. The Government owes to the public not only its judgment, but also its industry. The order of the Collector did not show "any brand of illegality upon its forehead". One fails to understand how, by reading the order it can be concluded that the order was illegal or improper. The Government owes to the public not only its judgment, but also its industry. "If thou cannot seethe bottom, wade not" is an apposite proverb. An order of the Government cannot be a breach of faith with the community. The orders now challenged have been issued without any application of the mind, without reference to the records of the subordinate authority and without complying with the statutory demands under Clause.18 of the Kerosene Control Order. The Government letter No.13690/D3/12/Food dated 29-7-1983 referred to in Ext. P2 and Ext. P2 the consequential order of the District Collector, No. C53-174/83 dated 2-8-1983 are therefore quashed. 26. The 4th respondent did not function as licensee from 23-7-1983 till 2-8-1983 when the suspension order was in force. He has not been functioning since 12-8-1983 after this court passed the interim order. No order need be passed now to revive his licence. To do so may be against public interest at this stage. It is better in the interests of justice that the status quo as on today is allowed to continue till the disposal of the revision by the Government. The Government will dispose of the revision and pass final orders under Clause.18 in accordance with law and in the light of the observations made above. I do hot express any opinion on the legality of propriety of the suspension order. O. P. is allowed to the above extent. No costs. Allowed.