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2021 DIGILAW 258 (AP)

Godasu Thirupalamma v. State of Andhra Pradesh

2021-04-15

M.SATYANARAYANA MURTHY

body2021
ORDER : 1. The petition under Article 226 of the Constitution of India is filed to issue writ of Mandamus declaring the action of the respondents suspending the authorization to run the fair price shop No.0838030, Darisi Gunta Peta Village, C.S.Puram Mandal, Ongole District, in Rc.CS2(6)/235481/2019, dated 19.12.2019 issued by the 2nd respondent, as contrary to the provisions of the A.P. Schedule Commodities (TPDS) Control Order, 2018 and judgements of this Court in 2012 (6) ALD 723 , 2013 (4) ALD 540 , 2015 (3) ALD 104 , 2015 (3) ALD 659 and 2015 (3) ALD 558 , without considering the representation of the petitioner, without any basis and without conducting inquiry and without verifying the report, as illegal, arbitrary and consequently set aside the same with a direction to the respondents to continue the petitioner as a dealer for the fair price shop No.0838030 of Darisi Gunta Peta Village, C.S.Puram Mandal, Ongole District. 2. The brief facts of the case of the petitioner are that the petitioner is a widower aged about 30 years, a member of BC community. Her husband died about four years prior to filing of this petition. She is living with a physically handicapped daughter and two sons. Her first son was prosecuting education with aid of her relatives and thus she is living below poverty line and she is member of Dwakra group (Chaitanya Sahayaka Group). 3. She studied tenth class and considering her qualifications and poverty and being a widow and member of Dwakra group, she was appointed as fair price shop dealer for shop number 0838030 of Darisi Gunta Peta Village, C.S.Puram Mandal, Ongole District, vide orders issued by the Revenue Divisional Officer, Kandukuru, in Rc.F.166/2018 dated 09.08.2018. Since the death of her husband, she has been distributing commodities to the cardholders without any remark and to the satisfaction of the cardholders allotted to the shop. 4. To her surprise, she received a show cause notice in Rc.CS2(6)/235481/2019, dated 29.11.2019 calling for explanation within seven days from the date of notice, basing on the alleged report of the 4th respondent, without supported by any material such as the alleged report of the 4th respondent, panchanama, the alleged complaint of villagers and the statements of the villagers. 4. To her surprise, she received a show cause notice in Rc.CS2(6)/235481/2019, dated 29.11.2019 calling for explanation within seven days from the date of notice, basing on the alleged report of the 4th respondent, without supported by any material such as the alleged report of the 4th respondent, panchanama, the alleged complaint of villagers and the statements of the villagers. A show cause notice was issued by the 2nd respondent without any material and it clearly establishes that the 4th respondent has enquired based on the complaint of the cardholders that the petitioner has not distributed commodities properly and reported that he verified the stocks available and found no variation. Despite such report, show cause notice was issued by the 2nd respondent without any basis and later the authorization of the petitioner for the fair price shop number 0838030 was suspended without any basis. Thus, the 2nd respondent predetermined to terminate the dealership of the petitioner only with a view to accommodate a person of their interest due to political pressure and thereby the order passed by the respondent impugned in the Writ Petition, is illegal and contrary to the law and requested to set aside the same. 5. The 2nd respondent filed counter admitting appointment of the petitioner as a temporary fair price shop dealer and passing of impugned order suspending the authorization of the petitioner for the shop number 0838030 of Darisi Gunta Peta Village, C.S.Puram Mandal, Ongole District, while denying the allegation that there is no material for issuing such show cause notice, suspending the authorization of the petitioner. 6. The specific contention of the respondent is that as there is specific material to conclude that the petitioner committed irregularities in distribution of essential commodities, the interim order is passed as allowing her to continue as dealer, may cause further damage to the system. It is further contended that the appointment of petitioner is only for the convenience of the cardholders, purely on temporary basis with the condition that the fair price shop dealer should not accrue any right over the fair price shop at the time of filling the fair price shop vacancy on permanent basis and will be terminated at any time without prior intimation. But the petitioner has failed to do so and caused much inconvenience to the cardholders and violated the guidelines issued in A.P. State Targeted PDS (Control) Order, 2018 r/w the E.C.Act, 1955. 7. During pendency of the petition, after issuing show cause notice and receiving explanation from the petitioner and conducting necessary enquiry, the disciplinary inquiry initiated against the petitioner was completed and a final order was passed terminating the dealership of the petitioner under the A.P. State Targeted PDS (Control) Order, 2018 in G.O.Ms.No.15 C.A, F & CS (CS.I) Dept., dated 01.08.2018 vide Rc.CS2(6)/235481/2019, dated 16.03.2020. A copy of the order is already served to the petitioner but she refused to receive the same subscribing her signature, acknowledging the receipt of the same, approached this Court and filed the Writ Petition. Thereby, the petitioner is disentitled to claim any relief in the Writ Petition and requested to dismiss the petition. Copies of final order and other proceedings to the notice are annexed to the counter. 8. During hearing, Sri P.Sree Ramulu Naidu, learned counsel for the petitioner, vehemently contended that though a final order was allegedly passed, a copy of it was not served on the petitioner and no proof is filed. The order was passed behind the petitioner without following due procedure. Thereby, the order cannot be sustained and on the ground of passing final order, the Writ Petition cannot be dismissed. He has also drawn the attention of this Court to the interim order passed by this Court, dated 22.02.2021, whereunder this Court directed the respondent to supply essential commodities to the fair price shop of the petitioner and a copy of the proceedings issued by the respondent is also placed in Rc.CS2(6)/235481/2019, dated 20.03.2021. In the last para of the order, it is clearly mentioned that in terms of the order dated 22.02.2021, the Sub-Collector, Kandukur (the disciplinary authority as per G.O.Ms.No.11, Consumer Affairs Food and Civil Supplies (CS.1) Department, dated 09.09.2020) is directed to permit the petitioner Smt.Godasu Tirupalamma W/o Late Tirupataiah, temporary fair price shop dealer, F.P.Shop No.0838030, Darisi Gunta Peta Village, C.S.Puram Mandal, to supply the essential commodities to the cardholders of the F.P.Shop No.0838030. Based on this para, he contended that virtually the cancellation is subsequent to the direction and thereby the respondents manipulated various proceedings without affording an opportunity to the petitioner and thereby the final order is illegal, besides that, impugned order in the Writ Petition is tainted by illegalities, irregularities and malafides and requested to set aside both the impugned order and final order dated 16.03.2020 in Rc.CS2(6)/235481/2019. 9. Whereas Sri. G. Raju, learned Assistant Government Pleader for Civil Supplies, specifically contended that when the suspension order is passed only suspending the authorization during pendency of the disciplinary proceedings, the Writ Petition becomes infructuous in view of passing final order terminating the authorization of the petitioner for the fair price shop number 0838030 of Darisi Gunta Peta Village, C.S.Puram Mandal, Ongole District in Rc.CS2(6)/235481/2019, dated 16.03.2020. This Court cannot set aside the final order, while contending that the order copy was tendered to the petitioner, but she refused to receive the same subscribing her signature acknowledging the receipt of the order. This itself indicates that the petitioner, with a malafide intention, has approached this Court to cling on to the fair price shop and continue to distribute the essential commodities to the cardholders and requested to dismiss the petition. 10. Considering the rival contentions and based on material available on record, the point to be answered is as follows:- “Whether any cause survives for adjudication by this Court, after final order is passed dated 16.03.2020 in Rc.CS2(6)/235481/2019? If so, whether this Court can set aside the final order based on the arguments advanced by the learned counsel for the petitioner Sri.P. Sree Ramulu Naidu?” POINT:- 11. Undisputedly, the impugned order was passed suspending the dealership of the petitioner for the fair price shop number 0838030 of Darisi Gunta Peta Village, C.S.Puram Mandal, only during pendency of disciplinary proceedings. The operative portion of the impugned order in the Writ Petition is as follows:- “In the circumstances stated above the F.P. Shop Dealer Smt Godasu Tirupalamma W/o Late Tirupataiah Temporary F.P.Shop dealer, F.P.Shop No.0838030 Darisi Gunta Peta Village of C.S.Puram Mandal is hereby suspended under pending enquiry in terms of Andhra Pradesh State Targeted Public Distribution System (Control), Order, 2018 in G.O.Ms.No.15 C.A, F & CS (CS.I) Dept., dated 01.08.2018.” 12. As can be seen from the operative portion of the order, the suspension of dealership for the F.P.Shop No.0838030 is only during pendency of the inquiry i.e., disciplinary proceedings initiated against the petitioner for the alleged irregularities committed in distribution of essential commodities. The respondent has already framed charges and served a show cause notice calling for explanation and the petitioner appears to have submitted the explanation but dissatisfied with the same, called for further explanation. Thus, the disciplinary proceedings initiated against the petitioner were pending as on the date of filing the Writ Petition and thereby the suspension order is only for the limited period i.e., during pendency of the disciplinary proceedings initiated against the petitioner for the alleged irregularities committed by her in violation of Control Order, 2018 and provisions of the Essential Commodities Act. Thus, when a final order is passed, the suspension order would come to an end. As final order of termination of the dealership of the petitioner is passed by the order dated 16.03.2020 in Rc.CS2(6)/235481/2019, the proceedings impugned in the Writ Petition is deemed to come to an end. Therefore, the Writ Petition virtually became infructuous but for one reason or the other, learned counsel for the petitioner insisted this Court to declare the final order as illegal and arbitrary and without affording any opportunity, by pointing out certain allegations made in the counter and the final order passed by the 2nd respondent including the interim direction issued by this Court dated 22.02.2021. 13. As discussed above, since the suspension was during pendency of the inquiry initiated against the petitioner and a final order was passed, the petition became infructuous and this Court need not advert to various contentions raised in the Writ Petition, regarding the legality of the order passed by the 2nd respondent suspending the authorization of the petitioner for the fair price shop No.0838030, Darisi Gunta Peta Village, C.S.Puram Mandal, as it is a futile exercise. Therefore, the various contentions raised in the Writ Petition with regard to legality of the order of suspension impugned in the Writ Petition vide proceedings Rc.CS2(6)/235481/2019, dated 29.11.2019 were not adverted to, as various contentions raised by the respondent in the counter are not adverted to. 14. Therefore, the various contentions raised in the Writ Petition with regard to legality of the order of suspension impugned in the Writ Petition vide proceedings Rc.CS2(6)/235481/2019, dated 29.11.2019 were not adverted to, as various contentions raised by the respondent in the counter are not adverted to. 14. The major contention of P.Sree Ramulu Naidu is that despite the interim order dated 22.02.2021 passed by this Court directing the respondent to supply essential commodities to the petitioner’s fair price shop to enable her to distribute the same to the cardholders in view of the circumstances narrated in the order, 2nd respondent passed a final order. No doubt, an interim order was passed directing the respondents to continue supply of essential commodities to the fair price shop enabling the petitioner to distribute essential commodities to the cardholders, which is only an interim measure during pendency of the disciplinary inquiry initiated against the petitioner. Whenever a final order is passed, the interim order will merge in the final order and it cannot have any independent force. Apart from that, the direction issued at the end of the final order is only because of the interim direction of this Court dated 22.02.2021 and not otherwise. However, as seen from the final order, which is only the subject matter of this petition, the dealership of the petitioner for shop number No.0838030, temporary dealership is terminated as the irregularities are proved by the 4th respondent. 15. Learned counsel for the petitioner, though raised several contentions with regard to failure to afford an opportunity to the petitioner and failure to conduct an inquiry in terms of law laid by this Court, those pleas are not required to be adjudicated in the present petition, as the claim of the petitioner is limited to the impugned order of suspension during pendency of the inquiry. If the petitioner has got any objection on the legality of the final order terminating the dealership of the petitioner vide proceedings Rc.CS2(6)/235481/2019 dated 16.03.2020, the petitioner is entitled to pursue her legal remedies in a competent Court or by way of appeal to the appellate Court under the Control Order, 2018. Instead of redressing their grievance against the final order, insisting this Court to adjudicate upon the legality of the final order terminating the dealership of the petitioner, is most unjustified, as it is beyond the scope of the claim in the petition. Instead of redressing their grievance against the final order, insisting this Court to adjudicate upon the legality of the final order terminating the dealership of the petitioner, is most unjustified, as it is beyond the scope of the claim in the petition. Apart from that, by the date of filing this petition, there was no cause of action to the petitioner to challenge the final order terminating the dealership of the petitioner vide proceedings Rc.CS2(6)/235481/2019 dated 16.03.2020. Therefore, this Court cannot venture to adjudicate the legality of the final order passed by the 2nd respondent terminating the dealership of the petitioner. Hence, no finding need be recorded on the legality of the final order. 16. One of the contentions of the learned counsel for the petitioner is that when the copy of the order is not served on the petitioner, the petitioner is not in a position to redress her grievance but whereas the respondent pleaded that a copy of the order was tendered but she refused to receive the same subscribing her signature acknowledging receipt of the copy of the final order but these issues cannot be decided in the present Writ Petition, in view of the limited scope. However, a copy of the order is filed along with the counter of the respondents. To avoid unnecessary further complications, I find that it is appropriate to direct the 2nd respondent to serve a copy of the order by Registered Post on the petitioner with acknowledgement due and on receipt of the copy of the order, the petitioner is entitled to redress her grievance before a competent authority and in terms of the Control Order, 2018, or before a competent Court in a separate proceedings. 17. In view of my foregoing discussion, I find that this Writ Petition becomes infructuous, in view of passing the final order terminating the dealership of the petitioner for fair price shop No. 0838030, vide order dated 16.03.2020, in Rc.CS2(6)/235481/2019, which cannot be decided in the present Writ Petition. Though the learned counsel for the petitioner by over-vehemently insisted this Court to record a finding beyond the scope of this Writ Petition, I am not able to accede to the request of the learned counsel for the petitioner and consequently the petitioner is not entitled to claim any relief in the Writ Petition. Though the learned counsel for the petitioner by over-vehemently insisted this Court to record a finding beyond the scope of this Writ Petition, I am not able to accede to the request of the learned counsel for the petitioner and consequently the petitioner is not entitled to claim any relief in the Writ Petition. Accordingly, the point is answered against the petitioner and in favour of the respondent. 18. In the result, this writ petition is dismissed as infructuous, while directing the 2nd respondent to serve a copy of the final order vide proceedings in Rc.CS2(6)/235481/2019, dated 16.03.2020 by Registered Post with Acknowledgment Due, within a week from today and on receipt of the same, the petitioner can redress her grievance before the competent authority, if she is really aggrieved. In the circumstances, there shall be no order as to costs. The miscellaneous applications pending, if any, shall also stand closed.