Andhra Pradesh High Court - Amravati
M Sreedevi vs State Of A.P on 26 August, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.3340 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution of India to issue Writ of Mandamus declaring the order issued by respondent No.2 vide Roc.C1/905/2019 dated.30.11.2019 appointing respondent No.5 as temporary dealer for the FP Shop No.1050003, Guntipalli Village, Penumur Mandal, Chittoor District on the ground that the petitioner was allegedly submitted her resignation without following the procedure as contemplated under A.P. State Targetted Public Distribution System (Control) Order, 2018 (for short "Control Order, 2018") as illegal, arbitrary, and violative of principles of natural justice, consequently set aside the said order dated 30.11.2019 and further direct the respondent Nos.1 to 3 to continue the petitioner as FP Shop dealer.
The petitioner is a permanent dealer of Fair Price Shop No.1050003, Guntipalli Village, Penumur Mandal, Chittoor District, having obtained authorisation under Clause 8 of the Control Order, 2018, which is valid up to 31.03.2021.
On 20.11.2019 respondent No.4 visited the shop of the petitioner, obtained her signature on the white blank paper on the pretext of supplying essential commodities to her shop for distribution of the same to the cardholders in the month of December 2019. In view of request of respondent No.4, the petitioner subscribed her signature on the blank paper under the impression that it was obtained for supply of essential commodities.
MSM,J WP_3340_2020 2 On 04.12.2019, the petitioner came to know that the essential commodities are not being supplied to her for distribution on the ground that she is not having authorisation, as such she approached respondent No.2 and obtained authorisation on 04.12.2019, which is valid up to 31.03.2021. Later, her dealership was cancelled on the ground that she tendered resignation and appointed respondent No.5 as temporary dealer, which is not permissible under law. As per clause 23 of Form of Authorisation issued under Clause 8 of the Control Order, 2018, the holders of the authorisation shall work for a minimum period of 5 years, unless suspended or cancelled by competent authority.
Thus, the resignation of dealership shall not be accepted within a period of 5 years. Respondent No.4 based on the signature of the petitioner obtained by misrepresentation of fact, created resignation letter and not releasing the essential commodities for distribution of the same to the cardholders allotted to her shop. Therefore, the act of the respondents is contrary to law and violative of principles of natural justice besides violative of Article 14 of the Constitution of India and requested to issue a direction as stated above.
Notice was served on respondents, proof of service is filed. None of the respondents filed counter, including respondent No.5 represented by Sri K.Srinivas, Learned Counsel.
During hearing, Sri M.M.M.Srinivasa Rao, learned counsel for the petitioner, raised a specific contention that the petitioner never tendered resignation, but by false representation, respondent No.4 obtained her signature on white paper on the pretext that her signature is required to supply essential commodities, believing his MSM,J WP_3340_2020 3 words, she signed on the blank white paper and the same was used and created letter of resignation. Therefore, such resignation is not voluntarily; it was obtained by respondent No.4 by misrepresentation and contrary to the law laid down by the High Court of Andhra Pradesh at Hyderabad in "Nakka Krishna Rao Vs. The State of Andhra Pradesh1" and "Chinnareddigari Sambasiva Reddy Vs. The State of Andhra Pradesh2" and no opportunity was afforded to the petitioner to submit her explanation as to whether she actually tendered resignation or not. Hence, the order impugned in this writ petition is violative of principles of natural justice and requested to set aside the same.
Learned Assistant Government Pleader for Civil Supplies supported the impugned order on the ground that the resignation is voluntary and respondent No.2 passed the impugned order in accordance with law. When resignation was tendered voluntarily, question of waiting for 5 years as per Clause 23 of Form of Authorisation issued under Clause 8 of the Control Order, 2018 does not arise, requested to dismiss the writ petition.
Sri K.Srinivas, learned counsel for respondent No.5, contended that the order impugned in the writ petition cannot be set aside, since, the dealership was already allotted to respondent No.5 strictly adhering to the procedure prescribed in Control Order, 2018. The question of affording any opportunity in compliance of principles of natural justice does not arise as the petitioner herself voluntarily tendered resignation, requested to dismiss the petition.
1 2015 (6) ALT 149 2 2015 (1) ALT 472 MSM,J WP_3340_2020 4 Undisputedly, the petitioner was an authorised dealer of Fair Price Shop No.1050003, Guntipalli Village, Penumur Mandal, Chittoor District, having obtained authorisation under Clause 8 of the Control Order, 2018, which is valid up to 31.03.2021. Therefore, as on date, her authorisation is subsisting, but her dealership was cancelled by impugned order and the same was allotted to respondent No.5 as temporary dealer on the basis of alleged resignation.
When the petitioner was appointed as a dealer, unless there are compelling circumstances, dealer would not tender resignation. Even otherwise, before passing appropriate order of cancelling dealership by the authorities concerned i.e. Joint Collector, he has to make necessary enquiry to find out whether such resignation is voluntary/genuine. Here, no such enquiry was conducted, but the Joint Collector straight away cancelled the dealership of the petitioner. Such cancellation is contrary to clause 12 (ix) of the guidelines for selection and appointment of fair price shop dealers under Andhra Pradesh State Public Distribution System (Control) Order, 2008, and clause 17 of the Form of Authorisation (Form No.II) of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 (Old Control Order) and it is in pari materia to Clause 8 of Form of Authorisation (Form II) of Control Order, 2018.
Clause 17 of the Form of Authorisation (Form II) of the Andhra Pradesh State Public Distribution System (Control) Order, 2008 (Old Control Order), reads as follows:
"The holders of this authorisation shall work for a minimum period of five years, unless suspended or cancelled by competent authority.
MSM,J WP_3340_2020 5 Resignations etc. seeking to leave the dealership shall not be accepted within this minimum period of five years."
From the aforesaid Clause, it is clear that the resignation shall not be accepted within the minimum period of five years of dealership.
Clause 12 (ix) of the Guidelines for Selection and Appointment etc. of Fair price Shop Dealers under Andhra Pradesh State Public Distribution System (Control) Order 2008, reads as follows:
"Every candidate appointed as F.P. Shop dealer shall be required to work a minimum period of 5 (five) years unless the authorisation of the F.P. shop is suspended or cancelled by Competent authority. Resignations etc. seeking to relinquish the dealership shall not be accepted within the minimum period of 5 (five) years. Failure to adhere to this condition, shall result in forfeiture of the trade deposit remitted by the dealers."
Learned single Judge of the High Court of Andhra Pradesh at Hyderabad referred the said clauses in "Nakka Krishna Rao Vs. The State of Andhra Pradesh" (referred supra), held that the cancellation of dealership based on alleged resignation tendered by the dealer is illegal.
In "Chinnareddigari Sambasiva Reddy Vs. The State of Andhra Pradesh" (referred supra) the High Court of Andhra Pradesh at Hyderabad took an identical view, held as follows:
"Ordinarily, no fair price shop dealer would like to quit his assignment. If such extra-ordinary desire is expressed by any dealer, it is incumbent upon the appointing authority to put the dealer on notice before accepting the resignation as, foul play by vested interests cannot be ruled out. Therefore, I cannot appreciate the action of respondent No. 3 in purporting to ratify the hasty and unauthorised action of respondent No. 4 without even trying to get the confirmation from the petitioner as to whether he has sent his resignation out of his free will or the same is secured by any vested interests by force. The failure of respondent No. 3 to make an enquiry in this regard by issuing notice to the petitioner vitiates the entire action of respondent Nos. 3 and 4 in easing out the petitioner from the fair price shop dealership. As respondent No. 3 has not properly MSM,J WP_3340_2020 6 exercised his jurisdiction in acting on the purported resignation of the petitioner, his action culminating in acceptance/ratification of resignation of the petitioner is declared as illegal and the impugned order is, accordingly, set aside. As the petitioner is inclined to continue as the fair price shop dealer, he shall be permitted to continue as such under the authorization held by him."
In the present facts of the case, no notice was issued to the petitioner before passing an order of cancellation of dealership. Thus, the order of cancellation of dealership of the petitioner and appointment of respondent No.5 as temporary dealer is contrary to the principles laid down in "Nakka Krishna Rao Vs. The State of Andhra Pradesh" and "Chinnareddigari Sambasiva Reddy Vs. The State of Andhra Pradesh" (referred supra) and such order passed by respondent No.2 is not only in violation of principles of natural justice as no notice was issued by respondent No.2 before passing such order, and also contrary to clause 23 of the Form of Authorisation issued under Clause 8 of the Control Order, 2018. Hence, applying the principles laid down in the above judgments, I hold that the order impugned in this writ petition is violative of principles of natural justice, and also in violation of Clause 23 of Form of Authorisation issued under Clause 8 of the Control Order, 2018 and Guidelines for Selection and Appointment of Fair Price Shop Dealers. Consequently, the impugned order is liable to be set aside.
In the result, the writ petition is allowed declaring the order issued by respondent No.2 vide Roc.C1/905/2019 dated 30.11.2019 appointing respondent No.5 as temporary dealer for the FP Shop No.1050003, Guntipalli Village, Penumur Mandal, Chittoor District as illegal, arbitrary and violative of principles of natural justice and the said order of respondent No.2 vide MSM,J WP_3340_2020 7 Roc.C1/905/2019 dated.30.11.2019 is hereby set aside. The respondent Nos.1 to 4 are directed to restore the dealership of the petitioner within one week from today and continue to supply essential commodities to the petitioner subject to compliance of other requirements for supply, to distribute the same to the cardholders allotted to her shop. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 26.08.2020 Ksp