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2021 DIGILAW 270 (AP)

G. Maheswari v. State of Andhra Pradesh

2021-04-22

M.SATYANARAYANA MURTHY

body2021
ORDER : This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus declaring the action of the 2nd respondent in issuing the proceedings in R.C.No.K3/2566/2019, dated 12.12.2019 cancelling the authorization of the petitioner’s fair price shop No.1285063 of Venugopal Nagar, Ananthapuram District, as illegal and arbitrary and consequently set aside the same. 2. The case of the petitioner is that, she was appointed as permanent Fair Price Shop Dealer for the fair price shop No.1285063 of Venugopal Nagar, Ananthapuram District. From the date of appointment, the petitioner was distributing essential commodities to the card holders without any remark. While the matter stood thus, on 21.08.2019, the 3rd respondent and staff of the District Civil Supplies employees inspected the fair price shop of the petitioner and found certain irregularities, conducted panchanama in the presence of panchayatdars and mediators and seized certain quantity of essential commodities including EPOS mission, weighting mission and handed over to the Mandal Revenue Inspector for safe custody. Based on the panchanama, the rd respondent forwarded the same to the 2nd respondent for initiation of proceedings under Section 6-A of Essential Commodities Act, 1955. The 2nd respondent under the influence of local political pressure, cancelled the authorization of the petitioner’s fair price shop vide proceedings in R.No.K3/2566/2019 dated 12.12.2019 without conducting any enquiry. Simply, the 2nd respondent held that the petitioner has not submitted any explanation to the show cause notice issued in Rc.No.K3/2666/2019 dated 01.10.2019, therefore, the authorization of the petitioner is cancelled. 3. It is main contention of the petitioner before this Court is that the variation found as per the panchanama is within the permissible limits. Even otherwise for cancellation of authorization by exercising power under Clause 8(4) of the Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018(for short ‘Control Order, 2018’) an enquiry is required to be conducted independently by the competent authority and by recording reasons in writing thereof, pass an order either for cancellation or suspension of the authorization during pendency of the enquiry. It is further contended that cancellation of authorization based on a report under Section 6-A of the Essential Commodities Act, cancellation of authorization by exercising power under Clause 8(4) of the Control Order, 2018 is in illegality and thereby the order is vitiated by illegality and requested to set aside the same. 4. It is further contended that cancellation of authorization based on a report under Section 6-A of the Essential Commodities Act, cancellation of authorization by exercising power under Clause 8(4) of the Control Order, 2018 is in illegality and thereby the order is vitiated by illegality and requested to set aside the same. 4. The respondent filed counter denying the material allegations while admitting inspection of the shop of this petitioner, finding certain variations and seizure of the essential commodities along with EPOS machine and weighing machine itself entrustment to the Revenue Inspector for safe custody etc., The respondent also admitted that the proceedings under Section 6-A of the Essential Commodities Act, 1955 were initiated against the fair price shop dealer and also submitted a report for initiation of disciplinary enquiry. On the basis of such report, simultaneously sent along with the request, initiated proceedings, the order was passed under Clause 8(4) of the Control Order, 2018. 5. It is further contended that the show cause notice was issued to the fair price shop dealer calling her explanation for violation of Clause 12P(3) of APSTPDS (Control) Order, 2018 but no explanation was submitted thereby the order under Clause 8(4) and 21(c) of APTPDS Control Order, 2018 was passed canceling the authorization of the petitioner’s fair price shop and as such, there is no violation much less violation of any rule and principles of natural justice. Consequently, the petitioner is liable to be dismissed and requested accordingly. 6. During hearing, Sri K.Srinivas, learned Counsel for the petitioner raised three contentions. The first contention is that passing an order vide proceedings initiated under Section 6-A of Essential Commodities Act, 1955 is in illegality in the absence of any independent report for initiation of proceedings under Clause 20(2) of Control Order, 2018 to take disciplinary action for violation of the provisions of the Control Order. The second contention is that the respondent did not conduct any enquiry independently as contemplated under Clause 8(4) of the Control Order, 2018 and in the absence of any enquiry, the order is invalid and place reliance of two judgments of this Court i.e., C.Durga Srinivas Rao and others v. State of Andhra Pradesh, W.P.No.30126 of 2015 and Pidikiti Sailaja v. State of Andhra Pradesh, 2015(2) ALT 667 . 7. 7. The third contention is that the show cause notice allegedly issued by the respondent is not enabling the petitioner to submit her explanation but passed an order in a routine manner without conducting any enquiry and thereby the order is vitiated by irregularities and requested to set aside the same. 8. Whereas, learned Government Pleader for Civil Supplies would contend that a separate report as contemplated under 20(i) of Control Order, 2018 was submitted by the concerned Tahsildar to initiate disciplinary proceedings simultaneously with a report for initiation of proceedings under Section 6-A of the Essential Commodities Act, 1955 and thereafter a show cause notice was issued and the same was served on the Sri Maruthi Kumar Goud, who is the husband of the fair price shop dealer on 06.10.2019 and thereby there is no violation much less deliberated violation of any rules and consequently petition is liable to be dismissed and requested to dismiss the writ petition. 9. Considering the contentions raised by the learned Counsel for the petitioner and on perusal of the material available on record, the point that arise for consideration is: Whether the order impugned in R.No.K3/2566/2019 dated 12.12.2019 passed by the 2nd respondent/Joint Collector is strictly adhering to the Control Order, 2018, if not, whether the order be sustained? 10. There is no dispute regarding passing an order terminating the authorization of this petitioner under the impugned proceedings but the contention raised before this Court is that no disciplinary proceedings can be initiated without giving any separate report as mandated under Clause 20(i) of the Control Order, 2018, thereby, the impugned order is illegal. 11. During hearing, learned Counsel for the petitioner has drawn the attention of this Court to the penultimate para of first page of the order where there is reference about 6-A proceedings without any reference to disciplinary proceedings initiated against the petitioner. The third para of second page of the order established that no report was submitted separately as required under 20(i) of the Control Order, 2018 and thereby initiation of disciplinary proceedings without any report separately, passing an order is in illegality. At this stage, it is relevant to refer Clause 20(i) of the Control Order, 2018 for better appreciation of facts. At this stage, it is relevant to refer Clause 20(i) of the Control Order, 2018 for better appreciation of facts. According to the Clause 20(i) of the Control Order, 2018, the inspecting authorities as and when found contravention of provisions of this order, shall submit necessary inspection reports for initiation of disciplinary action under this order. In case of seizure of scheduled commodities, for any violation or contravention of the provisions of the order a report of seizure shall be submitted to the Joint Collector as the case may be for initiation of disciplinary action under Section 6-A(1) of the Essential Commodities Act, 1955. Simultaneously, a separate report shall be filed for initiation of disciplinary proceedings against the fair price shop dealer for violation of Control Order and for violation of conditions of the order. 12. But in the present case, admittedly a report for initiation of proceedings under Section 6-A of the Essential Commodities Act, 1955 is submitted and proceedings were initiated under Section 6-A against the petitioner. But, so far as a separate report for initiation of disciplinary proceedings against the petitioner is in controversy. Basing on the orders, the 3rd respondent submitted report to the 2nd respondent but as seen from the order impugned in the writ petition, there is a specific reference of Section 6-A proceedings in the orders. In the reference of the order the office issued a show-cause notice in Rc.No.K3/2666/2019 dated 01.10.2019. A copy of the show-cause notice is placed on record by the respondent along with the counter to establish that show cause notice based on the report was issued calling upon the explanation of this petitioner and the same was served allegedly on the husband of the fair price shop dealer/Maruti Kumar Goud in the reference letter R.C.No.6S/866/2019 dated 22.08.2019 of the Tahsildar, Ananthapuram Mandal is mentioned. It relates to the proceedings under Section 6-A of the Essential Commodities Act, 1955. As seen from the impugned order dated 12.12.2017 i.e., 1st reference it is extracted as follows…… “Ref: 1. 6-A report received from Tahsildar, Ananthapuram Mandal in R.C.No. CS/866/2019 dated 22.08.2019.” 13. But the contention of the 2nd respondent is that a 3rd separate report was submitted by the 3rd respondent in compliance of mandatory requirements under Clause 20(i) of the Control Order, 2018. 6-A report received from Tahsildar, Ananthapuram Mandal in R.C.No. CS/866/2019 dated 22.08.2019.” 13. But the contention of the 2nd respondent is that a 3rd separate report was submitted by the 3rd respondent in compliance of mandatory requirements under Clause 20(i) of the Control Order, 2018. A copy of the report is not placed on record to substantiate such contention that a separate report has mandated under 20(i) of the Control Order, 2018 with a request to initiate disciplinary action against this petitioner of contravention of any of the control orders and seizure of the essential commodities. Though, the respondent contended that a separate report was submitted for initiation of proceedings, there is absolutely no material to establish that a separate report as mandated under Clause 20(i) of the Control Order, 2018 submitted by the 3rd respondent for initiation of disciplinary proceedings against the petitioner for contravention of the Control Order. Hence, the contention of the respondent is that a separate report as mandated was submitted by the 3rd respondent and on the basis of said report the disciplinary proceedings were initiated is baseless and the same is hereby rejected. 14. The 2nd contention of the petitioner is that once the 2nd respondent intend to pass an order an enquiry is required to be conducted by the competent authority for passing an order under Clause 8(4) of the Control Order, 2018. But, without conducting any such enquiry, the impugned order was passed, which is illegal. 15. At this stage, it is worthy of reference of Clause 8(4) of the Control Order, 2018 for better appreciation and accordingly it is extracted herein…. “The appointing authority may, at any time in public interest or suo-moto or on receipt of complaint, after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, suspend or cancel the authorization issued or deemed to be issued to him/her under this Clause.” 16. Clause 8(4) of the Control Order, 2018 is clear that the appointing authority shall make an enquiry independently prior taking a decision either to suspend or cancel the authorization of the petitioner exercising power under Clause 8(4) of Control Order, 2018. An enquiry required to be conducted is not specified anywhere but the law declared by this Court on this aspect referred in Pidikiti Sailaja case (supra) as follows….. An enquiry required to be conducted is not specified anywhere but the law declared by this Court on this aspect referred in Pidikiti Sailaja case (supra) as follows….. “In the light of these allegations, an obligation was cast on respondent No.4 to make a detailed enquiry with reference to entries in the Sales and Stock Registers and by giving the petitioner an opportunity of personal hearing.” 17. Learned counsel for the petitioner while reiterating the contention that the 3rd respondent lacks competency to pass the impugned order in terms of Clause 8(4) and 2(e) (n) of Control Order, 2018. The 2nd respondent is in competent to initiate proceedings and thereby the order impugned is liable to be set aside on the ground of lack of competency, besides the above contention, he raised a specific contention that no enquiry was conducted as contemplated under Clause 8(4) of the Essential Commodities Act and thereby the order impugned is illegal. He placed reliance on B.Manjula Vs.District Collector, Civil Suipplies, Kurnool and Others, 2015(4) ALT 572 ; G.Anjaneyulu vs.Collector (Civil Supplies) Mahaboobnagar and others, 2005(2) ALT 410 ; Kamala Kumari Vs.Sub Collector, Vijayawada and others, 2011(3) ALT 606 ; R.Sandhya Reddy Vs.Sub Collector (FAC) Mulutu, Warangal District, 2013(2) ALT 787 and M.Sadasiva Sekhar V.District Collector, Kurnool and others, 2003(3) ALT 68 . In all the decisions supra, it was held that the appointing authority is the Revenue Divisional Officer and under Sub-clause(4) of Clause 3 of the Control Order, 2018 if any fair price shop dealer has contravened the provisions of the Control Order, and rules or conditions of authorization, the Revenue Divisional Officer is the competent authority to suspend/cancel the authorization after conducting such enquiry as may be necessary. It was also held that as per the said Clause the competent authority shall provide an opportunity of making a representation before passing such an order. Therefore, basing on the law laid down, he requested to set aside the impugned order, as no enquiry was conducted as contemplated in Control Order, 2018. 18. It was also held that as per the said Clause the competent authority shall provide an opportunity of making a representation before passing such an order. Therefore, basing on the law laid down, he requested to set aside the impugned order, as no enquiry was conducted as contemplated in Control Order, 2018. 18. Learned Government Pleader for Civil Supplies appearing for the respondents while supporting the order impugned, in all respects contends that the respondent authorities had issued the show cause notice calling for explanation of the petitioner, which is on record and having satisfied with the material on record that the petitioner committed grave irregularities, his authorization was cancelled and therefore, the order impugned was passed and it is in accordance with law and the writ petition does not stand for legal scrutiny. 19. In view of the law declared by the High Court of Andhra Pradesh at Hyderabad, the 2nd respondent is required to conduct necessary enquiry affording an opportunity to appear before the 2nd respondent and explain her specific case, recording of evidence of the 3rd respondent and his witnesses so also afford an opportunity to the petitioner to adduce evidence and submit argument but without following said procedure as laid down by this Court in 2015 (2) ALT 667 , this order impugned in the writ petition is passed by the 2nd respondent and thus the order in the writ petition is contrary to the law laid down by this Court in the two judgments and the very initiation of disciplinary proceedings against this petitioner is in violation of Clause 20(i) of the Control Order, 2018 is illegal. The termination order passed against this petitioner is illegal and arbitrary and contrary to the law laid down by this Court. 20. In view of my findings on the first two contentions, the order impugned in the writ petition is illegal and thereby the same is liable to be set aside. 21. In the result, the writ petition is allowed and the proceedings dated 12.12.2019 issued by the 2nd respondent is hereby set aside. No costs. Miscellaneous petitions pending if any shall stand closed.