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2009 DIGILAW 753 (KER)

Subramoniam v. Secretary, Food & Civil Supplies Department

2009-08-13

V.GIRI

body2009
Judgment : The petitioner is an Authorised Wholesale Dealer of ration articles. He is licensed to run AWD No.4 at Pottakuzhi Junction in Ernakulam and he is doing so. The 8th respondent is another Authorised Wholesale Dealer of ration articles and he is licensed to run AWD No.5. 2. The 2nd respondent, Deputy Controller of Rationing suspended the licence of the 8th respondent vide Ext.P1 order dated 27.3.2009 alleging certain irregularities in the conduct of the wholesale shop. By the suspension of the licence of a wholesale dealer, it also became necessary to make a provision for the retail dealers attached to the wholesale dealer. But it seems that Ext.Pl order dated 27.3.2009 was actually implemented by the District Supply Officer, Ernakulam and the City Rationing Officer, Kochi only on 28.4.2009. The shops attached to AWD No.5 were temporarily attached to AWD No.4 licensed in favour of the petitioner. 3. The petitioner contends that on implementation of the suspension order, Ext.P1, he had also remitted an advance amount for shifting of rationed articles for supply to the retail dealers, originally attached to AWD No.5. 4. It is contended that on 29.4.2009 Ext.P3 order stated to have been passed by the respondent, Deputy Secretary to Government Food and Civil Supplies Department, on 28.4.2009 was produced before the District Supply Officer. The said order reads as follows: "Inviting attention to the reference cited, I am to inform you that the implementation of the proceedings referred above is stayed till the disposal of the appeal petition." 5. The Dis0trict Supply Officer, Ernakulam informed the 8th respondent that the order of suspension has already been implemented. It seems that thereupon, the 8th respondent had moved the Government again for restoration of status quo ante as on 10 a.m. on 28.4.2009. The said application of the 8th respondent was also allowed by the 1st respondent, as evidenced by ExtP5. Ext.P5 reads as follows: "I am to invite your attention to the reference cited and to request you to restore status-quo-ante as on 10 a.m. on 28.04.09 and permit the petitioner to conduct the AWD No.V of Kochi immediately." 6. Exts.P3 and P5 have been challenged in this Writ Petition. 7. Ext.P5 reads as follows: "I am to invite your attention to the reference cited and to request you to restore status-quo-ante as on 10 a.m. on 28.04.09 and permit the petitioner to conduct the AWD No.V of Kochi immediately." 6. Exts.P3 and P5 have been challenged in this Writ Petition. 7. This court passed an interim order on 5.5.2009 directing respondents 5 to 9 to maintain status quo ante of AWD No.4 as on 28.4.2009 by linking AWD No.5 with AWD No.4 of the writ petitioner, operative for a period of one month. It was later extended from time to time and the order continues to be operative as on date. 8. A statement has been filed on behalf of the 1st respondent and a counter affidavit has been filed by the 8th respondent. The petitioner has, in turn, filed a reply affidavit. 9. The petitioner challenges Exts.P3 and P5 orders on the ground that the order of suspension Ext.P1 was passed by the Deputy Controller of Rationing, after detecting grave irregularities in the conduct of AWD No.5 by the 8th respondent. The order of suspension was passed on 27.3.2009. It was implemented on 28.4.2009 and the shops attached to AWD No. 5 came to be attached to AWD No.4. If that be so, the order of stay Ext.P3 stated to have been passed on 28.4.2009 actually did not bring any change in the consequences. The said order itself was passed without hearing the petitioner. But, thereafter, in spite of the implementation of the order of suspension, an order of status quo ante was passed on 30.4.2009 vide Ext.P5. This was also done without hearing the petitioner. Both these orders are, therefore, without jurisdiction or at least vitiated by an illegal exercise of jurisdiction. They are, therefore, liable to be set aside. It is contended that Ext.P1 was appealable under C1.51(x) of the Rationing Order and if that be so, there was no reason why the Government should have purported to exercise power under C1.71 of the Rationing Order. 10. It is affirmed in the statement filed on behalf of the 1st respondent that the Government is competent to exercise revisional powers in relation to any order or proceedings of any subordinate authority under the Rationing Order. 10. It is affirmed in the statement filed on behalf of the 1st respondent that the Government is competent to exercise revisional powers in relation to any order or proceedings of any subordinate authority under the Rationing Order. If the Government thought it fit to interfere with an order of suspension issued by the Deputy Controller of Rationing, then it was perfectly competent for the Government to do so. Ext.P3 is with jurisdiction. Since the said order is interim in character, it was not necessary to have issued notice to any other person before passing the same. It is also categorically asserted that the petitioner, who is only another wholesale dealer, is bereft of the focus standi to challenge the order passed by the Government. The petitioner cannot have any say in the proceedings initiated against the 8th respondent by the Government. The petitioner is not an aggrieved person insofar as Ext.P5 is concerned. Ext.P5 came to be issued only as a matter of implementation of Ext.P3 and not otherwise. Thus, the authority which is competent to pass an order of stay is also competent to pass other ancillary interim orders. 11. The 8th respondent in his counter affidavit, has adopted the same contentions. He would also allege that the petitioner has no locus standi to challenge the orders passed by the Government. The petitioner cannot consider himself as either a necessary or even a proper party in the proceedings initiated by the competent authority under the Rationing Order against the 8th respondent. At any rate, the petitioner has no locus standi to challenge the order of stay passed by the Government or the order of status quo. 12. I heard learned counsel for the petitioner Mr. V.V. Asokan, learned Additional Advocate General Mr. Renjith Thampan, for the Government and Mr. K.P. Dandapani learned senior counsel along with Mr. T.S. Radhakrishnan for the 8th respondent. I had called for the files leading to Exts.P3 and P5 and I have perused the same. 13. Apart from the contentions raised in the Writ Petition, learned counsel for the petitioner had also contended that Exts.P3 and P5 orders came to be passed not by the Secretary to Government, but by the Hon'ble Minister for Food and Civil Supplies and Animal Husbandry. 13. Apart from the contentions raised in the Writ Petition, learned counsel for the petitioner had also contended that Exts.P3 and P5 orders came to be passed not by the Secretary to Government, but by the Hon'ble Minister for Food and Civil Supplies and Animal Husbandry. He contended that assuming that, the Minister also has the powers to hear the revision under C1.71 of the Rationing Order or for that matter pass an order of stay, in the instant case, the order is seen passed in the name of the Deputy Secretary. But, it is actually the Minister, who has directed such an order of stay to be passed. This, it is contended, is an abuse of power. The Hon'ble Minister, it is contended, could not have directed a Deputy Secretary, who may otherwise be competent, on behalf of the Government, to pass an order in a particular manner. 14. It is in the wake of these submissions that I called for the files leading to Ext.P3 and they have been produced. 15. Art.166 of the Constitution of India deals with the manner in which the Executive Government carries on its business of administration. Cls.2 and 3 of Art.166 of the Constitution enables the Governor of the State to frame what is called `Rules of Business'. Accordingly, the `Rules of Business' of the Government of Kerala have also been framed. The Secretary is defined in R.2(2) of the 'Rules' to include a Deputy Secretary also. The General Clauses Act applies to the interpretation of the 'Rules of Business'. R.4 of the Rules provides that the business of the Government shall be transacted in the Department specified in the 1st schedule. Rr.7 and 9 of the Rules are immediately apposite and are hereby extracted hereunder: "7. The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these rules, whether such orders are authorised by an individual Minister on a matter appertaining to his portfolio or as the result of discussion at a meeting of the Council or otherwise. 9. Without prejudice to the provisions of R.7, the Minister in charge of a Department shall primarily responsible for the disposal of the business appertaining to that Department." 16. The Minister in charge of the Department is primarily responsible for the disposal of the business appurtenant to the Department. 9. Without prejudice to the provisions of R.7, the Minister in charge of a Department shall primarily responsible for the disposal of the business appertaining to that Department." 16. The Minister in charge of the Department is primarily responsible for the disposal of the business appurtenant to the Department. There is no dispute that the implementation of the Rationing Order is one of the matters that is allocated to the Department of Food and Civil Supplies. The Hon'ble Minister for Food and Civil Supplies would, therefore, be primarily responsible for the decisions taken in the matter of distribution of food and civil supplies and this would include implementation of the Rationing Order, a subordinate order issued under the Essential Commodities Act and for that matter, resolution of disputes under the Rationing Order which arises at the Government level. The Government exercises statutory power of revision under C1.71 of the Rationing Order. Going by the `Rules of Business' which is reflective of the system of governance, brought into being by the Constitution of India, the Minister is primarily responsible for any order that is issued by the Government in exercise of the power under C1.71 of the Rationing Order. The law laid down by the Supreme Court in this regard in Sanjeevi Naidu v. State of Madras (AIR 1970 SC 1102), would afford useful guidance in this regard: "The cabinet is responsible to the legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personal responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard-working minister cannot attend to every business in his department. If he attempts to do it. he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. If he attempts to do it. he is bound to make a mess of his department. In every well-planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. When a civil servant takes a decision, he does not do it as delegate of his Minister. He does it on behalf of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates." 17. The principles have been amplified and affirmed by the 7 Judges Bench of the Supreme Court in Shanrsher Singh v. State of Punjab (AIR 1974 SC 2192). 18. Thus, the Minister, who is primarily responsible for the business of the Department would also, therefore, be competent to consider a revision presented before the Government invoking its powers under Cl.71 of the Rationing Order. He would be competent to hear the parties and pass appropriate orders thereon. An order of stay passed by the Minister, exercising the powers of the Government under Cl.71 of the Rationing Order would, therefore, be one which could be specifically sourced to the powers which the Government undoubtedly has, in that regard under the Rationing Order. 19. Mr. Asokan submits that if the Minister is considered to be having the authority to exercise the powers of revision under Cl.71 of the Rationing Order qua an order passed by any subordinate authority under the Rationing Order, this is a case where Exts.P3 and P5 orders are seen to have been issued by the Deputy Secretary to Government, though the orders are not actually passed by the Deputy Secretary. 20. I am afraid, that this submission, even if accepted, actually does not improve the case of the petitioner. 20. I am afraid, that this submission, even if accepted, actually does not improve the case of the petitioner. It is true that Exts.P3 and P5 are orders issued by the Deputy Secretary to the Government. Significantly, the Deputy Secretary is also a Secretary to Government in terms of the `Rules of Business'. Cl.7 of the 'Rules of Business' makes it clear that the Minister in charge of the Department concerned is primarily responsible for the transaction of the business of the said Department. Even when a decision on a particular aspect is taken by the Minister, it is issued as an order passed by the Government, and it could be signed by one or either of the Secretaries of the Department. A Secretary to Department does not act as a delegate of the Minister, but as part of the Government itself. A Minister also does not act as a delegate, but as part of the Government itself. This is the position that has been laid down eloquently in Sanjeevi Naidu. Recently, a Bench of this Court has in State of Kerala v. Krishna Kumar T. G. (2009 (3) KLT 274 = 2009 (3) KHC 137 (D.B.)) re-affirmed the principle, in the context of a contention taken that even in the matter of institutional decisions, a person, who has heard the parties, in the course of resolving a dispute, alone would be competent to take a decision in that regard. "A contention is raised by the excess direct recruits, relying on the principle that "he who heard must decide/he who decides must hear". The said principle is not applicable in the case of institutional decision making like that of the Government. In this case, even according to the direct recruits, the decision was made by the Minister. The parties were heard by Smt. G. Sreekumari, Joint Secretary to Government. She submitted the hearing note and also her views regarding the decision to be taken. It appears, the Minister did not agree with the suggestion of Smt. G. Sreekumari and took a different decision. When the Minister takes a decision, it is issued as a communication in the name of one of the Secretaries in his Ministry. So, it could have been issued in the name of Smt. G. Sreekumari also. This is not a decision taken by Sri. Marapandyan, in whose name the order is issued. When the Minister takes a decision, it is issued as a communication in the name of one of the Secretaries in his Ministry. So, it could have been issued in the name of Smt. G. Sreekumari also. This is not a decision taken by Sri. Marapandyan, in whose name the order is issued. So, in the light of the rules of business of the Government, the above contention of the contesting respondents/petitioners is untenable." 21. It is true that in the instant case, the decision to stay Ext.P1 order and the further decision to restore status quo ante as on 28.4.2009 were the decisions taken by the Minister. It is so reflected from the files as well. But under the 'Rules of Business', such decision will have to be expressed in the name of the Secretary to Government. It has been so done in the present case, as evidenced by Exts.P3 and P5. It cannot be said that there is either lack of jurisdiction or authority or even improper exercise of jurisdiction or error in the matter of Exts.P3 and P5. 22. Additional Advocate General Mr. Renjith Thampan and Mr. K.P. Dandapani, learned senior counsel appearing for the 8th respondent also contend that the petitioner lacks the locus standi to question Exts.P3 and P5 orders, which are orders of stay and order of restoration of status quo passed by the Government passed by the Government exercising its powers under Cl.71 of the Rationing Order. The petitioner is only another wholesale dealer. Proceedings were taken by the Deputy Controller of Rationing against the 8th respondent, another licensee and the Deputy Controller of Rationing passed an order of suspension. This was questioned by the licensee, the 8th respondent, by way of a revision invoking the powers of the Government under Cl.71 of the Rationing Order. At best, the lis could only be between the 8th respondent and the Government or for that matter, a subordinate official of the Government. It is a dispute between the licensee and the licensor regulated by the provisions of the Rationing Order. The petitioner came in only in the course of an interim arrangement, which had to be brought about by the Government as a consequence of the suspension of a wholesale dealer. The Ration shops, which were being serviced by the 8th respondent, were then to receive rationed articles from some other wholesale dealer. The petitioner came in only in the course of an interim arrangement, which had to be brought about by the Government as a consequence of the suspension of a wholesale dealer. The Ration shops, which were being serviced by the 8th respondent, were then to receive rationed articles from some other wholesale dealer. The Deputy Controller of Rationing chose the petitioner. It would have been perfectly open for the competent authority to choose any other dealer. Obviously, the petitioner cannot consider himself as an interested party in relation to the proceedings initiated against the 8th respondent. He cannot even be considered as a substitute or rival operator, as the case may be. The petitioner and the 8th respondent are independent licensees allotted different areas. Even if the suspension of the 8th respondent is revoked either by the original authority or the same was cancelled by the appellate authority or the Government the petitioner would be bereft of the locus standi or interest in the subject matter, requisite to question the same. Even a rival operator would not have the locus standi to challenge the action taken by the Licensing Authority qua another licensee. That principle would apply with more force in the present situation where, as licensees, the petitioner and the 8th respondent operate in different areas. The petitioner would not acquire any right or benefit by the suspension of the licence of the 8th respondent. Consequently, the petitioner does not suffer any deprivation by the revocation of the suspension of the licence of the 8th respondent. The petitioner, therefore, is bereft of the locus standi to challenge the orders issued by the Government qua the 8th respondent. I find force in the submission made by the learned Additional Advocate General that if one accepts the position that the petitioner has locus standi to challenge the interim order passed by the Government on a revision filed by the 8th respondent then it may lead to a situation where petitioner will have to be conceded the locus standi to challenge an order passed by a competent authority under the Rationing Order dropping the disciplinary proceedings against the 8th respondent. That obviously would lead to an incongruous situation. After all, it is the Government, who is the licensor and the petitioner and the 8th respondent are licensees operating in different areas. That obviously would lead to an incongruous situation. After all, it is the Government, who is the licensor and the petitioner and the 8th respondent are licensees operating in different areas. For all these reasons, I am of the view that there is no merit in this Writ Petition and it is accordingly dismissed. Interim orders already passed shall stand vacated forthwith.