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2022 DIGILAW 1344 (AP)

Ippili Koteswara Rao v. State of Andhra Pradesh

2022-11-22

BATTU DEVANAND

body2022
JUDGMENT : BATTU DEVANAND, J. 1. This writ petition is filed under Article 226 of the Constitution of India, questioning the order issued by the third respondent in S. No. 137/2019/S5 dated 24.12.2019 in cancelling the authorization of the petitioner’s Fair Price Shop No. 0118021, D. No. 265 Ponnampeta village, Amadalavalasa Mandal, Srikakulam District, without conducting enquiry and without considering the petitioner’s explanation dated 05.11.2019 as illegal, arbitrary and violative of principles of natural justice. 2. The case of the petitioner is that, he was appointed as permanent fair price shop dealer for Shop No. 0118021 in D. No. 2/65, Ponnampeta Village, Amadalavalasa Mandal, Srikakulam District, by the third respondent in the year 2016. The authorization of the petitioner was renewed from time to time and extended till 31.03.2020. Thereafter, the petitioner submitted application for renewal of his authorization. Accordingly, his authorization was extended for two more years and he is continuing as fair price shop dealer for the above said shop and distributing the essential commodities to the cardholders in the village without any remarks and complaints. 3. While so, the respondent-authorities inspected the petitioner’s shop on 19.10.2019 and found some variations in the essential commodities. The third respondent issued show cause notice dated 29.10.2019 framing three charges alleging that the petitioner has committed certain irregularities and seized the stocks. The petitioner submitted his explanation on 05.11.2019. However, the third respondent issued impugned proceedings in S. No. 137/2019/S5 dated 24.12.2019 cancelling the authorization of the petitioner without conducting enquiry and without considering explanation dated 05.11.2019. Hence, the writ petition. 4. The third respondent-Joint Collector filed counter affidavit stating that the fifth respondent-Tahsildar inspected the subject shop and found certain variations in the stock. He submitted report to the third respondent to take action under Section 6-A of the Essential Commodities Act. Accordingly, a show cause notice was issued to the petitioner and opportunity of personal hearing was afforded. As the explanation of the petitioner was not satisfactory, impugned proceedings were issued cancelling the authorization and prayed to dismiss the writ petition. 5. Having heard the submissions of the respective counsel and upon careful examination of the material available on record, it appears that the fair price shop of the petitioner was inspected by the Civil Supplies Department officials alleging variations in the stock, they seized the stock available in the shop pursuant to the mediators report. 5. Having heard the submissions of the respective counsel and upon careful examination of the material available on record, it appears that the fair price shop of the petitioner was inspected by the Civil Supplies Department officials alleging variations in the stock, they seized the stock available in the shop pursuant to the mediators report. Basing on the report submitted by the inspecting officials, the third respondent issued show cause notice to the petitioner by framing three charges and called for explanation. 6. Charge No. 1 is that, no authorized fair price shop dealer shall allow the person other than the family members for distribution of scheduled commodities in his/her shop. If any person found distributing the scheduled commodities as Benami, the authorization of such shop shall liable for cancellation besides initiating action under Section 6-A of the Essential Commodities Act, 1955 (Seizure of available commodities in the shop) and Section 7 of Essential Commodities Act, 1955, the provision of Criminal Procedure Code, thus the respondent contravened the provisions of AP State Targeted Public Distribution System (Control) Order, 2018. In the explanation, the dealer denied the charge and submitted that, at the time of inspection of fair price shop, his wife Ramanamma is in the fair price shop and assisting him in day to day operations of fair price shop. As such, she is not a benami and in fact she is the nominee. He submitted that, as per the allotment made by the Civil Supplies Authorities, every month he was drawing the Demand Drafts from the bank and releasing the Essential Commodities promptly. Further, it is reported that during the physical verification of stocks, the Inspection Team have found variation of: (i) PDS Rice 5 kg (-) 4 pkts (0.20 qtls): 10 kgs pkts (-) 6 pkts (0.60 qtls): 15 kg pkts 7 pkts (1.05 qtls): 20 kg pkts 13 (-) (2.60 qtls): totaling to 4.25 qtls. It is submitted that all the dealers in the Mandal have handed over the above Rice stocks to the MLS Point, Amadalavalasa as instructed by the CSDT, Amadalavalasa and obtained acknowledgments. (ii) RG Dall PDS (-) 0.09 qtls: The RG Dall was handed over to the volunteer through e-poss. So the same cannot be treated as varation. (iii) Sugar: The balance of Sugar physically available is 0.11 qtls. The variation is due to loose packing. (ii) RG Dall PDS (-) 0.09 qtls: The RG Dall was handed over to the volunteer through e-poss. So the same cannot be treated as varation. (iii) Sugar: The balance of Sugar physically available is 0.11 qtls. The variation is due to loose packing. The Inspecting Officials are taking a slip from the e-pos machine and started checking physically. The e-pos machine is showing old figures which are not being tallied with the stocks on ground. 7. Charge No. 2 is that, to make available scheduled commodities physically as per the balances shown in the electronic point of sale generated prints to cross check, the variation (excess/deficit) in stocks, thus the respondent contravened the Cl.12(p)(3) of AP State Targeted Public Distribution System (Control) Order, 2018. The dealer denied the charge and submitted that he was making all the ECs available that the Inspection Team are taking a print from the e-pos machine and comparing the stocks physically available on ground. In fact, the e-pos machine is showing the old figures whereas the stocks physically available are with reference to the ROs of August, September and October, 2019. As such, he has not contravened the Cl.12(p)(3) of AP State Targeted Public Distribution System (Control) Order, 2018. 8. Charge No. 3 is that, no fair price shop dealer shall take part in any political activity directly or indirectly in any General/Municipal/Panchayat Raj Elections, hampering the public distribution system and the authorization granted to them under the Order shall be cancelled, if she/he was found involved in such political activity/canvassing thus the respondent contravened the Cl.12(s) of AP State Targeted Public Distribution System (Control) Order, 2018. The dealer denied the charge and submitted that he has never directly and indirectly participated in political activity in any elections. The above charge is framed against the petitioner without any basis. Hence, he submitted that he has not contravened Cl.12(s) of AP State Targeted Public Distribution System (Control) Order, 2018. 9. The third respondent came to conclusion that the explanation submitted by the petitioner is not convincing and the charges framed against the petitioner were held proved and passed orders cancelling the authorization of the petitioner. 10. Hence, he submitted that he has not contravened Cl.12(s) of AP State Targeted Public Distribution System (Control) Order, 2018. 9. The third respondent came to conclusion that the explanation submitted by the petitioner is not convincing and the charges framed against the petitioner were held proved and passed orders cancelling the authorization of the petitioner. 10. A careful perusal of the impugned order, it appears, though the third respondent has issued show cause notice and considered the explanation of the petitioner, but, he did not record reasons for coming to conclusion that the explanation of the petitioner is not convincing for cancellation of authorization and the third respondent also did not conduct proper enquiry. The third respondent ought to have recorded his findings and reasoned order ought to have been passed. 11. This Court in B. Manjula vs. District Collector, Civil Supplies, Kurnool and Others, 2015 (4) ALT 572 observed as extracted hereunder: “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. 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. 11. The experience of this Court reveals that the appointing authorities of fair price shop dealers are dispensing with the requirement of making personal enquiry by summoning the dealers. They are merely relying upon the reports sent by their subordinates i.e. Deputy Tahsildars and Tahsildars, behind the back of the dealers and resting their decisions solely upon those reports. This procedure is anathema to the concept of enquiry which otherwise means affording the dealer an opportunity of a fair hearing.” 12. It is settled law that, before passing any final order, which affects the interest of any party, the authorities have to record reasons by conducting proper enquiry. Admittedly, in this case, proper enquiry was not conducted and no reasons were recorded in the impugned order, which is in violation of principles of natural justice. 13. In view of the same, as the Respondent No. 3 has not followed this procedure, in our considered opinion, the impugned order is unsustainable under law and liable to be set-aside. 14. It is an admitted fact that the petitioner is a fair price shop dealer and his entire family is depending on the income derived by distributing scheduled commodities to the cardholders for their survival. Admittedly, he is out of business for nearly three years and due to that reason, his entire family may be suffered a lot. Hence, the three years period can be treated as substantial punishment imposed against him and he suffered it. In view of these facts and circumstances, this Court is not inclined to remand the matter for fresh enquiry. 15. Accordingly, this writ petition is allowed with the following directions: (i) The impugned order in S. No. 137/2019/S5 dated 24.12.2019 is set-aside and the authorization of the petitioner is restored. (ii) The third respondent/Joint Collector is directed to continue the petitioner as fair price shop dealer in respect of Shop No. 0118021, D. No. 265 Ponnampeta village, Amadalavalasa Mandal, Srikakulam District, as usual. 16. There shall be no order as to costs. 17. Consequently, miscellaneous petitions pending, if any, in this contempt case shall stand closed.