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2020 DIGILAW 305 (AP)

M. Gangamma v. State of A. P.

2020-05-01

U.DURGA PRASAD RAO

body2020
ORDER : 1. The petitioner seeks a writ of mandamus declaring the order in Rc. CS3/432/2019 dated 22.01.2020 passed by the respondent No. 2 dated 22.01.2020 cancelling the authorization of the petitioner’s Fair Price Shop No. 1354010, Nittravatti Village, Halaharvi Mandal, Kurnool District without holding proper enquiry and assigned valid reasons as illegal, arbitrary and violative of principles of natural justice and against the provisions of clause 8(4) of the Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018 (for short “Control Order 2018”) and to set aside the same. 2. The petitioner’s case succinctly is thus: (a) The petitioner is a permanent dealer of Fair Price Shop No. 1354010 of Nittravatti Village and since last 12 years she has been conducting Fair Price Shop without any blemish. (b) While so, the respondent No. 4 along with Village Revenue Officer surprised her shop on 12.10.2019 and verified physical stock with EPOS balances and found tallied and went away without preparing any panchanama and without seizing any of the stock available. However, surprisingly the supply of commodities were stopped to her shop in the month of November, 2019. (c) While so, the Revenue Divisional Officer, Adoni issued a notice in Rc. M.5044/2019, dated 08.11.2019 directing the petitioner and six other dealers to attend before him for enquiry on 16.11.2019. Accordingly, the petitioner appeared for the enquiry. The RDO informed her that the Tahsildar, Halaharvi reported that though as per the EPOS balance of PDS rice is 7.24 Qtls but only 2 Qtls are available on ground and likewise there were variations in RG Dal also. The petitioner explained to RDO that there was a physical stock of 7.24 Qtls of PDS rice and 0.83 Kgs of RG Dal available with her in the shop and infact nothing was seized from her shop and the respondent No. 4 did not inform her about any variations. Thereafter, to the utter surprise of the petitioner, the respondent No. 2 issued show cause notice on 19.12.2019 framing six charges and directing her to appear and submit her explanation on 24.12.2019. The said show cause notice was issued basing on the report of RDO, Adoni. Thereafter, to the utter surprise of the petitioner, the respondent No. 2 issued show cause notice on 19.12.2019 framing six charges and directing her to appear and submit her explanation on 24.12.2019. The said show cause notice was issued basing on the report of RDO, Adoni. (d) Following directions in the show cause notice, the petitioner appeared in-person before the respondent No. 2 and filed her explanation charge-wise stating that there were no variations in the stock on ground and the available stock was tallied with EPOS machine balance and that she has not committed any irregularities and she has not diverted any essential commodities to the black market as alleged and there was no delay in distribution of the commodities and that she displayed the Stock and Price Board and that she has not violated any provisions. The petitioner has also submitted all those facts personally to the respondent No. 2. He promised that he would look into the matter and if necessary he would conduct a detailed enquiry. (e) While so, to her utter surprise and dismay, the respondent No. 2 passed the impugned order in Rc. CS3/432/2019 dated 22.01.2020 holding that the charges 1 to 5 were proved and ultimately cancelled her authorization. The respondent No. 2 has not considered the detailed explanation of the petitioner and no enquiry was conducted and no opportunity was given to the petitioner to establish her case which is a clear violation of principles of natural justice. The petitioner has not contravened any of the provisions of the Control Order, 2018. Though, the respondent No. 2 observed in his order that cardholders gave complaint against her, however did not examine them to give an opportunity to the petitioner to cross-examine them. Therefore, the order suffers a severe legal infirmity. Hence the writ petition. 3. Heard learned counsel for petitioner Sri. V. Sudhakar Reddy and learned Government Pleader for respondents. 4. Fulminating the order impugned, learned counsel for petitioner would vehemently argue that at the time when the petitioner’s shop was surprised on 12.10.2019 by the respondent No. 4 and other officials, they did not find any difference between the physical stock and the balance in EPOS machine and therefore they did not seize any commodity. 4. Fulminating the order impugned, learned counsel for petitioner would vehemently argue that at the time when the petitioner’s shop was surprised on 12.10.2019 by the respondent No. 4 and other officials, they did not find any difference between the physical stock and the balance in EPOS machine and therefore they did not seize any commodity. However, surprisingly, in the report given to the respondent No. 2 it was mentioned as if there were variations in respect of PDS rice, Sugar, RG Dal etc. more particularly there was a huge variation of 5 Qtls of PDS rice which is false. Learned counsel would argue that on the instructions of respondent No. 2 when the RDO, Adoni conducted enquiry, the petitioner has clearly submitted this fact stating that no variations were found in respect of any of the commodities in her shop by the respondent No. 4. However, the RDO too submitted an unverified report to respondent No. 2, basing on which, the respondent No. 2 issued a show cause notice to the petitioner framing as many as six charges. Learned counsel would further submit that the petitioner appeared before the respondent No. 2 and submitted her detailed explanation categorically traversing the charged allegations. Despite the same, the respondent No. 2 without scrutinizing the averments in the explanation in right perspective and without conducting proper enquiry and giving an opportunity to the petitioner to adduce evidence in proof of her counter allegations, held as if charges 1 to 5 were established. 5. Learned counsel would strenuously argue that surprisingly the respondent No. 2 observed as if a number of cardholders have complained against the petitioner. However, neither the copies of the complaints were furnished to the petitioner nor the so called complainants were examined so as to afford an opportunity to the petitioner to cross-examine them. Hence, the entire proceedings conducted by the respondent No. 2 are lead to cancellation of authorization was devoid of principles of natural justice and became traversity of justice. Learned counsel placed reliance on a decision in B. Manjula vs. District Collector, 2015 (4) ALT 572 to contend that in the enquiries in connection with the present type of cases, fair opportunity must be given to the person charged to adduce evidence. Learned counsel placed reliance on a decision in B. Manjula vs. District Collector, 2015 (4) ALT 572 to contend that in the enquiries in connection with the present type of cases, fair opportunity must be given to the person charged to adduce evidence. He would argue that since fair opportunity was not given to the petitioner and the order was passed without furnishing cogent reasons, the same may be set aside. 7. Per contra, learned Government Pleader for Civil Supplies while supporting the impugned order, would argue that the Deputy Tahsildar, Civil Supplies, Aluru had inspected the shop of the petitioner on 12.10.2019 in the presence of the petitioner and on verification of physical stock and EPOS machine stock, he found that there was a huge variation of 5 Qtls of PDS rice, 0.01 Qtls of Sugar and 0.58 Qtls of PDS Dal which were more than 1.5% commodity wise. The inspecting authority also found that the petitioner had not exhibited the Stock Board in the premises of Fair Price Shop. So, he submitted a detailed report to the respondent No. 2 for booking a case against her under Section 6-A of Essential Commodities Act, 1955 (for short “EC Act”). Thereupon, the respondent No. 2 after conducting an enquiry through the RDO and obtaining report, issued show cause notice to petitioner by framing six charges. He conducted a regular enquiry wherein the petitioner appeared and submitted her written explanation which was devoid of truth. Hence, the respondent No. 2 found the explanation un-satisfactory, and cancelled the authorization. Learned Government Pleader would argue that order is perfectly justified under law and there is no need to revisit the same. 8. The point for consideration is whether there are merits in the writ petition to allow? 9. POINT: As can be seen, it is the case of the respondents that the Deputy Tahsildar, Civil Supplies, Aluru has surprised the Fair Price Shop of the petitioner on 12.10.2019 and found variation between EPOS machine stock and physical stock in respect of the commodities viz. PDS rice - 5 Qtls, Sugar - 0.01 Qtls and PDS Dal - 0.58 Qtls. Be that it may, the respondent No. 2 issued show cause notice to the petitioner to submit her explanation and she obliged. The charges and the corresponding explanations are thus:- S. No. Charges framed Charges framed Explanation offered by the dealer/petitioner 1. 1. PDS rice - 5 Qtls, Sugar - 0.01 Qtls and PDS Dal - 0.58 Qtls. Be that it may, the respondent No. 2 issued show cause notice to the petitioner to submit her explanation and she obliged. The charges and the corresponding explanations are thus:- S. No. Charges framed Charges framed Explanation offered by the dealer/petitioner 1. 1. That the inspection team found variation of stock shortage of 5.00 Qtls of PDS Rice in the ground balance when compared to the e-Pos machine balance. In this case the variation is beyond permissible limit of 1.5% as per 29(a) under APSTPDS (Control) Order, 2018. The charge is denied, the variation was less than 1.5% and ignorable but it was falsely shown by increasing it to more than 1.5% with the influence and force of local political groups. 2. That the dealer is not distributing ECs to the cardholders with proper weighments, thereby violated clause 10(d) under APSTPDS (Control) Order, 2018. The dealer has been supplying all the essential commodities in proper manner to the cardholders and no complaint was given against her. Only some rival groups have made false complaints. 3. That the F.P. Shop dealer diverting Essential Commodities into black market thereby contravened clause of 10(f) under APSTPDS (Control) Order, 2018. The distributor never diverted to black-market any of the essential commodities and she never received any complaint from any cardholders since in her long tenure of dealership. 4. That the dealer is not maintaining timings prescribed by the government, thereby violated clause 8(14) under APSTPDS (Control) Order, 2018. The allegation is denied as baseless. No cardholder ever complained against the dealer for not maintaining the timings. 5. That the dealer not exhibited boards displaying the details of Stocks and prices of different commodities in the FP Shop, thereby violated Clause 12(n) under APSTPDS (Control) Order, 2018. The allegation is denied as false. Infact the distributor is displayed the details on all occasions even at the time of visits of the officials. 6. That the dealer distributed ECs to the cardholders for only 2 days, thereby violated Clause 10(a) and condition 18 of authorization under APSTPDS (Control) Order, 2018. The said allegation is denied as no cardholder ever made any allegation. 10. Then, a perusal of the impugned order shows that the presence of the petitioner and her submitting explanation are mentioned in the order. The said allegation is denied as no cardholder ever made any allegation. 10. Then, a perusal of the impugned order shows that the presence of the petitioner and her submitting explanation are mentioned in the order. It is further mentioned that as per the records, it was observed that many of the cardholders have complained against the petitioner that she was issuing essential commodities by using tin on the electronic weighing machine and thereby the cardholders getting less quantity of commodities than prescribed by the Government. After mentioning the aforesaid fact, the respondent No. 2 recorded his finding as follows: After having perused the entire record placed before me in the instant case, it is noticed that the shortage of 5 Qtls of Rice in the ground balance of the stocks detected by the inspecting Officers is found to be huge and beyond permissible limits. Thereby the substantive allegation i.e. the Charge-1 is held proved. Further, the Dealer’s silence maintained on the charge of failure to display the Stock-Price Board at a conspicuous place in the FP Shop goes to prove the charge-5 framed against the Dealer beyond any doubt. In view of the charges 1 to 5 framed against the Dealer are held proved, under the powers vested under clause 8(4) of the APSTPDS (Control) Order, 2018 the Authorization of Smt. M. Gangamma, F.P. Shop Dealer No. 1354010, Nittravatti Village, Halaharvi Mandal is hereby cancelled with immediate effect. 11. Now, the crucial question is whether respondent No. 2 has conducted the due enquiry by giving fair opportunity to the petitioner to establish her innocence as pleaded in her explanation and whether he has given cogent reasons for holding that the charges 1 to 5 framed against her were established beyond pale of doubt. 12. Before examining the validity of the above order, it is useful to extract the law laid down by this court as to the method and manner in which the enquiry should be conducted in a case of this nature in B. Manjula vs. District Collector, 2015 (4) ALT 572 the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh held thus: 9. This Court is conscious of the fact that the law discussed above was laid down by the Courts in the context of disciplinary proceedings against Government servants and it may not be possible to adhere to the same rigors of procedure in an enquiry against a fair price shop dealer. However, this Court is of the considered opinion that since an order of cancellation of fair price shop visits the dealer with adverse consequences, the appointing authority must adhere to the fundamental ingredients of an enquiry. The enquiry need not be too elaborate as in the case of a disciplinary proceeding against a Government servant, but it shall follow the basic requirement of an "enquiry" which in my view must be as described infra. 10. An "enquiry" pre-supposes an opportunity of personal hearing to the dealer to explain his/her case based on the records such as sales and stock registers. If need be, such 'enquiry' must also include recording the sworn statement of the dealer and witnesses, if any, from his/her side. In cases where either card holders or other persons sent any complaint, they must also be examined in the presence of the dealer or his/her lawyer and the dealer shall be given an opportunity of cross-examining such persons. The licencing/disciplinary authority shall also supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. Unless the dealer has no explanation at all to offer, the licensing/disciplinary authority is bound to hold a detailed enquiry. 13. The above observations would pellucidly tell us that in these types of cases, though enquiry need not be an elaborate one, however, it must be a due enquiry in as much as a fair opportunity should be given to the charged person by affording a personal hearing to him to explain his/her case based on record. When it is required, the Enquiring Authority must also record the sworn statements of the dealer and his witnesses on one hand and if there are complaints against the dealer, the statements of those complaints also on the other. The dealer or his/her lawyer shall be given an opportunity to cross-examine the complaint witnesses. The Licencing/Disciplinary authority shall supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. The dealer or his/her lawyer shall be given an opportunity to cross-examine the complaint witnesses. The Licencing/Disciplinary authority shall supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. When the case on hand is examined in the light of the requirements mentioned in the above judgment, it must be said, the enquiry in the instant case is miserably fell short of the requirements. 14. Firstly, it is the case of the inspecting authority that they found variations in respect of the different commodities which were more than permissible limit. The petitioner disputed the same explaining that the variation was a meagre one and no commodity was seized from her shop and no panchanama was recorded. Therefore, to substantiate the Charge No. 1, it is expedient that the panchanama report, if at all drafted by the inspecting authorities, must be exhibited during the enquiry by giving an advance copy to the petitioner. That was not done in this case. 15. Secondly, it is the case of the respondents that several persons have complained against the petitioner that she was issuing essential commodities by using the tin on the electronic weighing machine and thereby they are getting less quantity of commodities. The said allegations confirming part of Charge No. 2. However, to establish the said charge, the respondent did not examine any of the complainants so as to give an opportunity to the petitioner to cross examine them. That being the case, it is quite unknown as to how the respondent No. 2 was satisfied that the said charge was established. In respect of other charges are also, there is no plausible evidence except the subjective satisfaction of the respondent No. 2. Most importantly, in spite of petitioner categorically denying the Charge No. 5 in her explanation, still it is mentioned in the order that the dealer maintained a silence in respect of the said charge which is factually incorrect. So, on a conspectus, I find the impugned order is not supported any cogent evidence. Therefore, the impugned order is liable to be set aside. 16. In the result, this writ petition is allowed and the order in Rc. So, on a conspectus, I find the impugned order is not supported any cogent evidence. Therefore, the impugned order is liable to be set aside. 16. In the result, this writ petition is allowed and the order in Rc. CS3/432/2019, dated 22.01.2020 passed by the respondent No. 2 is set aside by restoring the dealership of the petitioner in respect of the Fair Price Shop No. 1354010 of Nittravatti Village, Kurnool District and she shall be permitted to function as Fair Price Shop dealer, during her authorized period. No costs. 17. As a sequel, interlocutory applications, if any pending, shall stand closed.