Research › Search › Judgment

Andhra High Court · body

2020 DIGILAW 494 (AP)

Tammineni Urmila v. State Of Andhra Pradesh

2020-08-04

U.DURGA PRASAD RAO

body2020
JUDGMENT U. Durga Prasad Rao, J. - The petitioner seeks a writ of mandamus declaring the cancellation proceedings SR.No.164/2019/S5, dated 01.05.2020, of the 3rd respondent in respect of the petitioner's Fair Price Shop No.0109061 of Thadivalasa Village, Ponduru Mandal, Srikakulam District, basing on the report submitted by 5th respondent as illegal and for a consequential order to set aside the same. 2. The petitioner's case is thus: (a) The petitioner was a member of Kranthi Self Helf Group and she was placed as incharge fair price shop dealer of the subject shop upon suspension of one Smt.G.Sudharani on temporary basis by the 5th respondent in order to avoid inconvenience to the card holders and upon his request, the 4th respondent vide his proceedings Rc.2083/2015 CS, dated 29.08.2016, ratified the said action of the 5th respondent and thereafter, the petitioner was distributing the essential commodities to the card holders. (b) While so, on 15.11.2019, on receipt of reliable information, the Tahsildar, Vigilance and Enforcement Department, Srikakulam, inspected the petitioner's fair price shop and found certain irregularities and conducted panchanama in the presence of panchayatdars and seized the physical balance available in the fair price shop. (c) The 5th respondent forwarded the report to the 3rd respondent for initiation of Section 6-A proceedings under Essential Commodities Act, 1955 and accordingly, the 3rd respondent initiated the Section 6-A proceedings and issued show-cause notice to the petitioner vide SR.No.164/2019, dated 01.01.2020 and the petitioner submitted her detailed explanation to the 3rd respondent on 07.03.2020. (d) While so, to the shock and surprise of the petitioner, the 3rd respondent, without giving an opportunity of adducing evidence and hearing to the petitioner, passed the impugned proceedings cancelling the order passed by the 4th respondent. Hence, the writ petition. 3. Heard learned counsel for petitioner, Sri M.Krishna Rao and learned Government Pleader for Civil Supplies, appearing on behalf of respondents. 4. While severely remonstrating the orders of the 3rd respondent, learned counsel for petitioner would argue that as against the charges framed against the petitioner though she submitted her detailed explanation about the alleged variations, however, the petitioner was not given an opportunity to adduce evidence to establish her defence and no personal hearing was also given to her. 4. While severely remonstrating the orders of the 3rd respondent, learned counsel for petitioner would argue that as against the charges framed against the petitioner though she submitted her detailed explanation about the alleged variations, however, the petitioner was not given an opportunity to adduce evidence to establish her defence and no personal hearing was also given to her. Learned counsel would argue that except mentioning that the explanation is not satisfactory, the 3rd respondent has not given reasons as to why the explanation is found to be incorrect or false. He placed reliance on the decisions in (1) Pidikiti Sailaja vs. State of Andhra Pradesh, rep. by its Principal Secretary, Civil Supplies Department and others, (2015) 2 ALT 667 and (2) B.Manjula vs. District Collector, (2015) 4 ALT 572 . He would argue that before passing the impugned orders, the concerned authority must give a fair opportunity to the petitioner. He thus, prayed to allow the writ petition. 5. Per contra, learned Government Pleader for Civil Supplies supported the order stating that in view of the variations in different commodities and the explanation being not satisfactory, the 3rd respondent has rightly passed the impugned orders and there is no illegality in the order impugned; moreover, the petitioner is only a temporary fair price shop dealer. He thus, prayed to dismiss the writ petition. 6. The point for consideration is whether there are merits in the writ petition to allow? 7. Point: It should be noted that the law on the method and manner of conducting enquiries by the Vigilance and Enforcement authorities is well delineated and no more res integra. The 3rd respondent being a quasi judicial authority, the course should give a fair opportunity to both parties to adduce their evidence if they propose during the course of enquiry and the authority shall give cogent reasons for the findings. Then only the higher courts can appreciate the validity of the order. In Pidikiti Sailaja's case (supra 1), it was observed that obligation was cast on the 4th respondent therein to make a detailed enquiry with reference to entries in those stock registers by giving the petitioner a personal hearing. 8. In B. Manjula's case (supra 2), in the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh held thus: "9. 8. In B. Manjula's case (supra 2), in 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 crossexamining 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. 9. Keeping the above jurimetrical jurisprudence in mind, I gave my anxious consideration to the facts and above divergent arguments of both sides and also perused the impugned order dated 01.05.2020 passed by the 3rd respondent. The charges framed against the petitioner are as follows: Charge No.1: The fair price shop dealer shall Bio-metric authenticate receipt of stocks from the Mandal Level Stock list Point/Agency of Civil Supplies Corporation in the electronic point of sale device immediately after receipt of stocks by him/her at fair price shop within 24 hours. The charges framed against the petitioner are as follows: Charge No.1: The fair price shop dealer shall Bio-metric authenticate receipt of stocks from the Mandal Level Stock list Point/Agency of Civil Supplies Corporation in the electronic point of sale device immediately after receipt of stocks by him/her at fair price shop within 24 hours. If any deviation in this regard, liable for punishment under the provisions of this order, thus the respondent contravened the Clause 12(c) of A.P. State Targeted Public Distribution System (Control) Order, 2018. Charge No.2: Normally the allowable variation of 1.5% in respect of single commodity taking into consideration of transactions of one month, but it was found huge variations at the time of inspection, thus the respondent contravened the clause 29 of A.P. State Targeted Public Distribution System (Control) Order, 2018. 10. On being issued show cause notice, the petitioner filed her detailed explanation. Then, further perusal of impugned order shows that after narrating the substance of her explanation, the 3rd respondent came to the opinion that the explanation filed by the petitioner is not satisfactory, and the charges framed against the petitioner were proved. Accordingly, he cancelled the ratified proceedings issued by the 4th respondent, where under she was placed as incharge fair price shop dealer on temporary basis. 11. As rightly argued by the learned counsel for petitioner, no opportunity was given to the petitioner to adduce evidence in proof of her stand and no reason is mentioned in the order as to why the explanation submitted by her was not taken into consideration. It should be noted that, the petitioner in her application categorically stated that the variation of the stock at the time of inspection was due to non-functioning of the e-poss machine, failure on the part of the village volunteers in taking the thumb impressions of card holders and the excess stock found by the vigilance and enforcement authorities belongs to previous month. Moreover, she intimated about nonfunctioning of the e-poss machine to the CSDT, Ponduru and VRO, Tadivalasa several times, but no action was taken by them to rectivy the defect. She further stated that she requested the CSDT, Ponduru, VRO, Tadivalasa and MLS Point, Ponduru, to take away the previous month's excess stocks from her shop, but no action has been taken. 12. She further stated that she requested the CSDT, Ponduru, VRO, Tadivalasa and MLS Point, Ponduru, to take away the previous month's excess stocks from her shop, but no action has been taken. 12. On perusal of the material papers, it is evident that the petitioner, at the time of inspection, has categorically informed to the vigilance authorities that the excess stock found belongs to previous month which accrued due to non-functioning of the e-poss machine and failure on the part of village volunteers in taking the thumb impressions of the card holders. The said spot explanation is without considering her submission, the vigilance authorities in a casual manner conducted the inspection and submitted their report to the higher authorities for initiation of Section 6-A proceedings. On perusal of the said report, it is clearly evident that the vigilance authorities have not considered the submissions made by the petitioner at any stage, moreover, did not make any attempt to verify the previous month's stock register so as to find out the veracity of her statement. 13. On perusal of the impugned proceedings, it is evident that the 3rd respondent has not assigned reasons for cancelling the proceedings of the 4th respondent, except stating that the explanation submitted by the petitioner is not satisfactory. The 3rd respondent has not given an opportunity to the petitioner to adduce evidence and it appears, he has also not afforded a personal hearing to her. Since no opportunity was afforded to the petitioner herein to adduce evidence and no personal hearing or hearing through counsel was done after receiving the explanation and no cogent reasons were mentioned for not taking into consideration the explanation, the impugned order is liable to be set aside. 14. Accordingly, the writ petition is allowed and the impugned order in SR.No.164/2019/S5, dated 01.05.2020, passed by the 3rd respondent is set aside and the matter is remitted back to the 3rd respondent to afford an opportunity to the petitioner to adduce evidence if he proposes to adduce any evidence and also afford an opportunity of hearing to the petitioner either personally or through counsel and pass a reasoned order on merits expeditiously but not later than three (03) months from the date of receipt of a copy of this order. Till such exercise is completed, the petitioner shall be permitted to conduct the Fair Price Shop No.0109061 of Thadivalasa Village, Ponduru Mandal, Srikakulam District. No costs. As a sequel, interlocutory applications, if any pending, shall stand closed.