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2022 DIGILAW 1459 (AP)

Jakku Saraswathi v. State of Andhra Pradesh

2022-12-13

VENKATESWARLU NIMMAGADDA

body2022
JUDGMENT VENKATESWARLU NIMMAGADDA, J. - Since the issue to be resolved in these three writ petitions and the parties to the proceedings are the same, I deem it appropriate to dispose of these three writ petitions by way of this common order. 2. For the sake of convenience and to avoid ambiguity in the discussion, the parties are referred to hereinafter as they are arrayed in W.P.No.13425 of 2022. 3. In brief, the facts are that the 1st petitioner and the 2nd petitioner are wife and husband. The 1st petitioner is the daughterin-law of one Smt. Jakku Atchayamma, who died on 10/3/2020. The 7th respondent is the authorized Fair Price Shop Dealer of Shop No.0315012, Jogampet Village, Golugonda Mandal, Visakhapatnam District. While so, the Assistant Supply Officer, Narsipatnam Division, had submitted a report to the 5th respondent against the 7th respondent, basing on the complaints given by the cardholders of the village that the 7th respondent has been drawing the rice of the deceased units and diverting the stock without the knowledge of cardholders and misusing the PDS commodities in violation of the Andhra Pradesh Targeted Public Distribution System (Control) Order, 2018 (for short 'the Control Order, 2018). Pursuant to the report of the Assistant Supply Officer, Narsipatnam Division, the 5th respondent issued a show cause notice to the 7th respondent, and vide proceedings dtd. 5/4/2021 suspended her authorization pending enquiry. Thereafter, the 5th respondent kept the 8th respondent in charge of the subject fair price shop, by proceedings dtd. 29/4/2021. Aggrieved by the suspension of her authorization, the 7th respondent filed a writ petition being W.P.No.25263 of 2021 before this Court. A learned Single Judge of this Court disposed of the writ petition on 8/11/2021 with a direction to the respondent authorities to complete the enquiry within two months. In compliance with the orders of this Court, the 5th respondent conducted an enquiry and in the enquiry, it is revealed that the 7th respondent committed an irregularity in distributing the essential commodities to the cardholders. However, the 5th respondent passed an order dtd. 8/4/2022 restoring the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 i) Assailing the order dtd. 8/4/2022 passed by the 5th respondent, while the petitioners filed W.P.No.13425 of 2022, the 8 th respondent filed W.P.No.16881 of 2022. ii) By an order dtd. However, the 5th respondent passed an order dtd. 8/4/2022 restoring the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 i) Assailing the order dtd. 8/4/2022 passed by the 5th respondent, while the petitioners filed W.P.No.13425 of 2022, the 8 th respondent filed W.P.No.16881 of 2022. ii) By an order dtd. 5/5/2022 in W.P.No.13425 of 2022, while ordering notice before admission, this Court directed the official respondents to see that the essential commodities are distributed to the cardholders through VRO/VRA. iii) In view of the orders of this Court dtd. 5/5/2022 passed in W.P.No.13425 of 2022, the 5 th respondent vide orders dtd. 11/5/2022 suspended the authorization of the 7th respondent temporarily pending disposal of the said writ petition, and kept the VRA, Jogampeta Village, in charge of the subject Fair Price Shop on temporary basis. Questioning the same, the 7th respondent filed W.P.No.17827 of 2022. 4. Heard Sri P. Rajasekhar, learned counsel for the petitioners in W.P.No.13425 of 2022, learned Government Pleader for Civil Supplies appearing for the official respondents, Sri S.V.S.S. Siva Ram, learned counsel for the 7th respondent in W.P.No.13425 of 2022 and petitioner in W.P.No.17827 of 2022, and Sri T.V.P.Sai Vihari, learned counsel for the 8th respondent and petitioner in W.P.No.16881 of 2022. 5. Learned counsel for the petitioners would contend that the 5 th respondent is not empowered to restore the authorization of the 7 th respondent by simply imposing a fine of Rs.5, 000.00 having held that the 7th respondent had drawn the rice of deceased units, under Clause 8(4) of the Control Order, 2018 and therefore, the proceedings of the 5th respondent dtd. 8/4/2022 are liable to be set aside. It is also contended that since the 7th respondent is found to have misused 295 kgs of rice as per the enquiry report, the authorization of the 7th respondent cannot be restored by imposing a fine of Rs.5, 000.00 and further, the 5th respondent is not vested with any power to restore the authorization of the 7th respondent. The learned counsel would also contend that without availing the alternative remedy of appeal before the 2nd respondent as envisaged under Clause 24 (b) of the Control Order, 2018, the 7th respondent straight away approached this Court by filing W.P.No.17827 of 2022. As such, the writ petition is not maintainable and it is liable to be dismissed. 6. The learned counsel would also contend that without availing the alternative remedy of appeal before the 2nd respondent as envisaged under Clause 24 (b) of the Control Order, 2018, the 7th respondent straight away approached this Court by filing W.P.No.17827 of 2022. As such, the writ petition is not maintainable and it is liable to be dismissed. 6. On the other hand, learned Government Pleader for Civil Supplies appearing for the official respondents would submit that as per the enquiry report of the Assistant Supply Officer, Narsipatnam, dtd. 30/3/2021, the 7th respondent had drawn 295 kgs of rice of deceased units and mis-utilised the same for her pecuniary gain. Basing on the report, the 5th respondent being the competent authority suspended the authorization of the 7th respondent by proceedings dtd. 5/4/2021. Subsequently, pursuant to the orders of this Court in W.P.No.25263 of 2021 dtd. 8/11/2021, after issuing a show cause notice to the 7th respondent and after affording an opportunity of submitting his explanation, the 5th respondent restored the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 in accordance with the gravity of the allegation. The above said order was assailed and this Court passed an interim order on 5/5/2022 in W.P.No.13425 of 2022, pursuant to which, the 5th respondent suspended the authorization of the 7th respondent pending final orders of this Court and kept the VRA of Jogampeta Village in-charge of the subject fair price shop on temporary basis, vide proceedings dtd. 11/5/2022. Therefore, the proceedings issued by the 5th respondent cannot be questioned. The learned Government Pleader would contend that since the 7th respondent is the permanent dealer, the 8th respondent, who is a temporary dealer, cannot be continued as fair price shop dealer of the subject shop. The learned Government Pleader wound contend that under the general law of interpretation of statutes, the power of suspension by the competent authority carries with it the inherent power to revoke the suspension. In support of this contention, he relied upon the decisions of the Hon'ble Supreme Court in K. Ganna Reddy Vs. Government of Andhra Pradesh, 2007 SCC Online AP 867. and in Kashmir Singh Vs. Union of India, (2008) 7 SCC 259 . Therefore, the writ petitions are devoid of merits and they are liable to be dismissed. 7. In support of this contention, he relied upon the decisions of the Hon'ble Supreme Court in K. Ganna Reddy Vs. Government of Andhra Pradesh, 2007 SCC Online AP 867. and in Kashmir Singh Vs. Union of India, (2008) 7 SCC 259 . Therefore, the writ petitions are devoid of merits and they are liable to be dismissed. 7. Learned counsel for the 7th respondent/petitioner in W.P.No.17827 of 2022 would submit that the 7th respondent has been running the subject fair price shop for a long time without any complaint whatsoever. Even as per the enquiry report of the Assistant Supply Officer, the misused quantity of rice is only 295 kgs which is too small/meagre. As such, the orders of the 5th respondent are valid and reasonable. Keeping this in view and that the 7th respondent committed an irregularity for the first time, the 5th respondent issued the impugned proceedings which, therefore, cannot be interfered with. The learned counsel would contend that having restored the authorization of the 7th respondent by proceedings dtd. 8/4/2022, the 5th respondent ought not to have suspended the authorization of the 7th respondent by proceedings dtd. 11/5/2022 on the ground that this Court passed an interim order dtd. 5/5/2022 in W.P.No.13425 of 2022 that the essential commodities be distributed to the cardholders through VRO/VRA. The learned counsel would also contend that even as per Clause 8 (4) of the Control Order, 2018, only on receipt of a complaint and after making an enquiry, the 5th respondent can suspend the authorization of the 7th respondent. But, the 5th respondent did not mention any reasons in his proceedings dtd. 11/5/2022 either about any complaint or any inspection by the respondent pointing out any of the irregularities against the 7th respondent, except stating about the orders of this Court. It is settled principle of law that a person cannot be punished twice for the very same mistake. Therefore, the orders of the 5th respondent dtd. 11/5/2022 are contrary to Clause 8 (4) of the Control Order, 2018 and they are liable to be set aside. The learned counsel would further contend that in view of Clauses VII and VIII of the Revised Guidelines for selection and appointment etc. of Fair Price Shop Dealers under the Control Order, 2018 annexed to G.O.Ms.No.32, Consumer Affairs, Food & Civil Supplies (C.S.I) Department, dtd. The learned counsel would further contend that in view of Clauses VII and VIII of the Revised Guidelines for selection and appointment etc. of Fair Price Shop Dealers under the Control Order, 2018 annexed to G.O.Ms.No.32, Consumer Affairs, Food & Civil Supplies (C.S.I) Department, dtd. 3/12/2018, the temporary dealer, 8th respondent, has no right to claim any relief at the time when the vacancy is being filled up on regular basis. Further, the 8th respondent has nothing to do with the disciplinary proceedings initiated against the 7th respondent and she has no locus to question the proceedings of the 5th respondent dtd. 8/4/2022 restoring the authorization of the 5th respondent, by way of filing W.P.No.16881 of 2022, as her appointment is purely temporary. In support of this contention, he relied on a decision of the Hon'ble Apex Court in Poonam Vs. State of Uttar Pradesh, (2016) 2 SCC 779 . The learned counsel, therefore, prays to allow the W.P.No.17827 of 2022 and to dismiss the W.P.Nos.13425 & 16881 of 2022. 8. Learned counsel for the 8th respondent/petitioner in W.P.No.16881 of 2022 would submit that the 8th respondent has been appointed as in charge of the subject Fair Price Shop according to the suspension of authorization of the 7th respondent by the 5th respondent vide proceedings dtd. 29/4/2021. Since then, she has been running the fair price shop without there being any blemish and the income derived from the same is the only source of income for eking out her livelihood. The learned counsel would contend that restoration of authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 by the 5th respondent is contrary to Clause 21 (c) of the Control Order, 2018 which envisages that if any fair price shop dealer diverts PDS stock either wholly or partly, the dealer shall be liable for cancellation of authorization besides penalty ten times the difference between the market rate and Targeted Public Distribution System rate of the commodity thus diverted. In view of the above, the impugned proceedings issued by the 5th respondent dtd. 8/4/2022 are liable to be set aside. 9. The 7th respondent was granted authorization for supply of essential commodities to the cardholders of Jogampet village, Golugonda Mandal, Visakhapatnam District, in respect of Fair Price Shop No.0315012 in the year 2016. In view of the above, the impugned proceedings issued by the 5th respondent dtd. 8/4/2022 are liable to be set aside. 9. The 7th respondent was granted authorization for supply of essential commodities to the cardholders of Jogampet village, Golugonda Mandal, Visakhapatnam District, in respect of Fair Price Shop No.0315012 in the year 2016. Since then, she has been distributing the essential commodities to the cardholders without any blemish and complaints till 2020. The allegation made against the 7th respondent is that she had been drawing the rice of the deceased units and misusing the PDS commodities in violation of the Control Order, 2018. The enquiry report dtd. 30/3/2021 of the Assistant Supply Officer, Narsipatnam Division, reveals that the 7th respondent had violated the rules and regulations of the Control Order, 2018 under the provisions of the Essential Commodities Act, 1955 and drawn 295 kgs of rice of deceased units without the knowledge of the cardholders which resulted in financial loss to the Government and a disciplinary action was sought to be taken against the 7th respondent. Accordingly, the 5th respondent suspended the authorization of the 7th respondent pending enquiry by proceedings dtd. 5/4/2021. Subsequently, as per the directions of this Court dtd. 8/11/2021 in W.P.No.25263 of 2021, an enquiry was conducted and in the enquiry, it is proved that the 7th respondent committed an irregularity. However, the 5th respondent restored the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 according to the gravity of the allegation, with a warning that if the 7th respondent commits any irregularity hereafter, serious action will be taken against her. 10. Having considered the submissions made by both the learned counsels and perused the entire record, it is apposite to refer to Clause 8(4) of the Control Order, 2018 which reads thus: "The appointing authority may, at any time in the public interest or on suo motu 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." 11. After receiving complaints from the cardholders and after conducting an enquiry, the 5th respondent suspended the authorization of the 7th respondent pending enquiry according to Clause 8(4) of the Control Order, 2018 and after conducting detailed enquiry in compliance with the orders of this Court, the 5th respondent restored the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00. So, the contention of the learned counsel for the petitioners that the 5th respondent is not empowered to restore the authorization of the 7th respondent as per Clause 8(4) of the Control Order, 2018, under which he was empowered either to suspend or cancel the authorization having found that the dealer committed an irregularity, is not acceptable due to the reason that it is a settled principle of law that the authority, which is empowered either to suspend or to cancel an authorization, is also empowered to restore the same. The said principle was laid down by the Hon'ble Apex Court. 12. In K. Ganna Reddy (1 supra), the Apex Court in para 18 of its judgment held thus: "18. It is also further averred that the impugned order is beyond the scope of show cause notice. The impugned order is very vague and does not specify the statutory rules violated by the petitioner. Rule 52 of the Rules deals with the power of suspension and cancellation of licences. Rule 52(2) of the Rules mandates, show cause notice issued to the licensee before his licence is cancelled or suspended. So, when reply is submitted by the licensee to the show cause notice issued by the AMC, if the AMC is satisfied with the reply, the AMC is bound to revoke the suspension. The provision of appeal under Rule 53 of the Rules can be availed by the aggrieved party, if cancellation order is passed or suspension order is continued being not satisfied with the reply to the show cause notice. So, it cannot be said that in every case of suspension, revocation has to be done by the appellate authority only. Under general law of interpretation of statutes, the power of suspension carried with it the inherent power to revoke the suspension. So, it cannot be said that in every case of suspension, revocation has to be done by the appellate authority only. Under general law of interpretation of statutes, the power of suspension carried with it the inherent power to revoke the suspension. With regard to the other anomaly pointed out by the second respondent, regarding resolution made through circulation meeting and not ratified through subsequent meeting, it is submitted that such circular resolution was passed only in case of allegation No.1. The bye-law No.7 of A.P.Market Committee, empowers AMC to pass resolutions through circular meetings. Invoking such Rule, suspension of 8 licences covered under allegation No.1 is revoked. It is the duty of the 4th respondent to enter such resolution in next meeting agenda, which is not done so. It is a lapse on the part of the fourth respondent and more so, technical in nature. Further the allegation regarding circular meeting was not mentioned in the show cause notice dtd. 27/7/2007. So, the impugned order is beyond the scope of show cause notice." 13. In Kashmir Singh (2 supra), the Apex Court in para 64 of its judgment held as under: "64. For the aforementioned purpose, we must bear in mind two salient principles i.e., the "power to appoint" carries with it the "power to remove" under the General Clauses Act. If the Commission is to be constituted from time to time, it must be held that to effectuate this power it would be reasonable to conclude that such power can be exercised as and when a necessity arises therefor." 14. The contention of the learned counsel for the 8th respondent/petitioner in W.P.No.16881 of 2022 that the orders of the 5th respondent dtd. 8/4/2022 are liable to be set aside in view of Clause 21 (c) of the Control Order, 2018, is not tenable for the reason that the stock was not diverted to anywhere and it was not found either in transportation or at any other place even as per the enquiry report of the Assistant Supply Officer, Narsipatnam Division, as such, the present irregularity does not come under the purview of Clause 21 (c) of the Control Order, 2018. 15. 15. The contention of the learned counsel for the 7th respondent that the 8th respondent, who was appointed as a temporary dealer, cannot claim any rights in her favour and the 8th respondent has no locus to challenge the proceedings of the 5th respondent dtd. 8/4/2022, has to be considered, in view of the settled principle of law as held by the Apex Court in paras 48 and 53 of its judgment in Poonam (3 supra) as under: "48. In the instant case, shop No. 2 had become vacant. The Appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee i.e., the Respondent assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the Appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party. It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context. 50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the Appellant. The writ Petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse is over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party. 16. The other contention of the learned counsel for the 7th respondent that the 7th respondent has been running the subject fair price shop since 2016 and the amount derived from the same is the only source of income to eke out her livelihood and the drawn rice of deceased units is only 295 kgs which is a small mistake of fact and an executable mistake and after considering the above, the 5th respondent restored the authorization of the 7th respondent by imposing a fine of Rs.5, 000.00 and therefore, the proceedings of the 5 th respondent cannot be interfered with, has very much force and to be considered. The contention of the 7th respondent that the further proceedings of the 5th respondent dtd. 11/5/2022 under which the authorization of the 7th respondent was again suspended for the same irregularity, are also liable to be interfered with, is well considerable, in view of the settled principle of law that a person cannot be punished twice for the very same mistake/offence. 17. The contention of the learned Government Pleader for Civil Supplies that having conducted full-fledged enquiry and provided opportunity of hearing to the parties concerned, the competent authority i.e., the 5th respondent restored the authorization of the 7th respondent vide proceedings dtd. 8/4/2022 and hence, the said proceedings cannot be interfered with, is also reasonable and sustainable. 18. For the foregoing discussion, this Court is of the opinion that the 5th respondent is competent either to cancel/suspend the authorization or revoke the suspension of authorization and that the 8 th respondent has no locus to question the proceedings issued by the 5th respondent restoring the authorization of the 7th respondent. 19. Accordingly, W.P.No.13425 of 2022 and W.P.No.16881 of 2022 are dismissed. W.P.No.17827 of 2022 is allowed and the proceedings dtd. 11/5/2022 issued by the Revenue Divisional Officer, Narsipatnam, are hereby set aside. 19. Accordingly, W.P.No.13425 of 2022 and W.P.No.16881 of 2022 are dismissed. W.P.No.17827 of 2022 is allowed and the proceedings dtd. 11/5/2022 issued by the Revenue Divisional Officer, Narsipatnam, are hereby set aside. No order as to costs. Consequently, miscellaneous applications, if any, pending shall stand closed.