Andhra Pradesh High Court - Amravati
M. Dali Naidu, S/O Late Surapanaidu vs The State Of Ap Rep By Its District ... on 28 October, 2022
Author: Battu Devanand
Bench: Battu Devanand
THE HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION NO.2514 OF 2014
ORDER:
1. This writ petition is filed under Article 226 of the Constitution of India, questioning the order issued by the third respondent in Rc.No.1930/2011-H dated 18.01.2014 in cancelling the authorization No.57/1991 of petitioner's Fair Price Shop in Sancham Village of Ranasthanam Mandal, Srikakulam District, as illegal, arbitrary and violative of principles of natural justice.
2. Heard learned counsel for the petitioner, learned Government Pleader for Civil Supplies and perused the record.
3. The case of the petitioner is that, he was appointed as Fair Price Shop dealer of Sancham Village, Ranasthalam Mandal, Srikakulam District. The petitioner was issued authorization No.57/1991 dated 05.07.1991. Since then, he has been discharging his duties with utmost satisfaction of the authorities and to the cardholders. The petitioner was also kept in-charge of the Fair Price Shop No.34 of Naruva Village in the year 2006. 2
4. The Deputy Tahsildar and some other staff inspected the Fair Price Shop No.34 of Naruva Village on 09.09.2011 and drafted mediator's report, alleging certain irregularities and registered a case under Section 6-A of the Essential Commodities Act, 1955. Basing on the report of the Deputy Tahsildar, Ranastalam, the third respondent cancelled the authorization of the petitioner by order in Rc.No.1930/2011-H dated 18.01.2014.
5. Learned counsel for the petitioner submits that, the third respondent did not conduct any enquiry, as stipulated in Clause (5) of the Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018. Except quoting the provisions of the Control Order, 2018, the impugned order does not disclose the reasons for cancellation. Though there are no irregularities found for the shop of Sancham Village for which the petitioner was originally granted authorization, the third respondent cancelled the authorization of the said shop, which is not valid and in violation of principles of natural justice. Learned counsel for the petitioner finally submitted that, at the political 3 pressure, the third respondent has issued the impugned order of cancellation of authorization No.57/1991 of the petitioner.
6. A counter affidavit has been filed on behalf of the respondents. It is the contention of the learned Government Pleader for Civil Supplies that, on 20.09.2011, the inspecting officials inspected the Fair Price Shop No.34 of Naruva Village, for which the petitioner is working as in-charge dealer. They found certain irregularities in running the fair price shop, besides huge variation of stocks. Basing on the report of the Deputy Tahsildar, originally the authorization of the petitioner was suspended on 01.10.2011. The appeal filed by the petitioner before the Joint Collector, Srikakulam was remanded to the third respondent for conducting enquiry and to pass final orders.
7. Learned Government Pleader further submits that, a show cause notice was issued to the petitioner framing two charges. Charge No.1 is that, the fair price shop dealer is diverting essential commodities to open market and thus, he is doing clandestine business in storing unauthorizedly 1.97 qtls of Rice, 45 liters of Kerosene Oil, in variation of ground stock with 4 reference to the stock Register and in contravention to the provisions of the Control Order, 2018. Charge No.2 is that the fair price shop dealer has failed to maintain records properly.
8. The petitioner has submitted his explanation. In the explanation, the petitioner submitted that, the quantity of 0.80 Qtls of Rice was issued to MPPE School, Jeerupeta and similarly, quantity of 1.00 Qtls of Rice was issued to MPEE School, Boyapalem. Thus, a total quantity of 1.80 Qtls of Rice was given to concerned Mid Day Meals Agency on 09.09.2011 morning. As such, there is only shortage of 17 Kgs of rice. Though it is brought to the notice of the inspecting officials, they did not consider the same. The shortage of 17 Kgs of rice is within the permissible limits. The MDM Agency has also given their receipts in token of receipt of the above stocks. With regard to 45 liters of Kerosene Oil, in the explanation, the petitioner offered that the stock of 45 liters was already distributed to the cardholders. The 45 liters of Kerosene Oil related to 23 cardholders. Though the Kerosene Oil was distributed to the cardholders, they have not taken the same to their house and kept in the premises of the fair price shop to lift the Kerosene Oil itself with September allotment, 5 keeping in view Vinayaka Chaturdhi festival. With regard to Charge No.2, the petitioner submitted his explanation that he is maintaining the records correctly as per the instructions of the Tahsildar. Considering the explanation submitted by the petitioner, the authorization of the petitioner was cancelled by the third respondent.
9. Having heard the submissions of the learned counsel appearing for both sides and upon perusal of the material available on record, it appears that, proper enquiry was not conducted by the third respondent before passing the impugned order. At Paragraph no.7 of the counter affidavit filed by the third respondent, it is averred as extracted hereunder:
".......It is submitted that the licensing authority need not enquiry into the matter. The licensing authority shall take disciplinary action basing on the enquiry report of the Dy. Tahsildars and Vigilance and Enforcement Officials. In this case, the Vigilance and Enforcement Officials inspected the F.P. Shop of the petitioner and found the petitioner committed irregularities. Hence the 3rd respondent took disciplinary action against the petitioner herein."
10. On careful perusal of the stand of the third respondent in his counter affidavit filed before this Court, as extracted above, it is clear that the third respondent is under the impression that he need not conduct independent enquiry, except considering the 6 enquiry report of the Deputy Tahsildar and Vigilance & Enforcement Officials, before passing disciplinary orders. The contention of the third respondent in our considered view is against the settled proposition of law and provisions of the Control Order, 2018.
11. It is the duty of the disciplinary authority to conduct independent enquiry in disciplinary proceedings and he has to apply his mind independently to pass final orders. While passing final order, the disciplinary authority ought to have afforded opportunity of personal hearing to the delinquent dealer and he has to record reasons for not getting convinced with the explanation submitted by the petitioner and to come to a conclusion to cancel the authorization of the petitioner. While issuing show cause notice, the third respondent shall furnish a copy of the report of the Deputy Tahsildar, which formed the basis of charges to the petitioner. On careful examination of the order impugned in this writ petition, all these essential ingredients are missing. In view of the same, the inaction of the respondents in not furnishing the enquiry report to the petitioner and not conducting detailed enquiry independently and not 7 recording the reasons for not accepting the explanation of the petitioner vitiates the proceedings due to violation of principles of natural justice.
12. The view of this Court is fortified by the order of this Court in B. Manjula vs. District Collector, Civil Supplies, Kurnool and others1, held 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. Unless the dealer has no explanation at all to offer, the licensing/disciplinary authority is bound to hold a detailed enquiry.
1 2015 (4) ALT 572 8
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."
13. For the above stated reasons and in the light of the law laid down by this Court, as stated supra, in our considered opinion, the order passed by the third respondent in Rc.No.1930/2011-H dated 18.01.2014 in cancelling the authorization No.57/1991 of petitioner's Fair Price Shop of Sancham Village of Ranasthanam Mandal, Srikakulam District, is unsustainable and it is liable to be set-aside.
14. Accordingly, this writ petition is allowed with the following directions:
i. The order in Rc.No.1930/2011-H dated 18.01.2014 on the file of Revenue Divisional Officer, Srikakulam is set-aside and authorization of the petitioner is restored;9
ii. The second respondent is directed to continue the petitioner as fair price shop dealer in respect of Shop No.34 of Naruva Village, as usual.
15. Consequently, miscellaneous applications pending if any, shall stand closed.
16. There shall be no order as to costs.
________________________________ JUSTICE BATTU DEVANAND Date:28.10.2022 SP 10 THE HON'BLE SRI JUSTICE BATTU DEVANAND WRIT PETITION NO.2514 OF 2014 Date:28.10.2022 SP