Andhra Pradesh High Court - Amravati
Smt. E. Aparna Devi vs The State Of Andhra Pradesh, on 1 October, 2019
Author: G. Shyam Prasad
Bench: G. Shyam Prasad
* HON'BLE SRI JUSTICE G. SHYAM PRASAD
+WRIT PETITION No: 15035 OF 2019
% 01-10-2019
# E. Aparna Devi, W/o Prakash Babu
... Petitioner.
vs.
$ The State of Andhra Pradesh, rep. by
its Principal Secretary, Consumer Affairs,
Velagapudi and 3 others.
... Respondents
!Counsel for the Petitioner : Sri K.V. Raghuveer
^Counsel for the Respondents : G.P. Civil Supplies
<Gist :
>Head Note :
? Cases referred : 1. AIR 1996 AP 185
2 GSP,J
WP No.15035 of 2019
HON'BLE SRI JUSTICE G. SHYAM PRASAD
WRIT PETITION No.15035 OF 2019
ORDER:
This is a writ of Mandamus filed by the petitioner to declare the action of the 2nd respondent in issuing the proceedings Rc.CS3/228/2019, dated NIL.09.2019 terminating the petitioner's dealership of Fair Price Shop No.1349025, R/o Dhone village and Mandal, Kurnool District, as illegal and arbitrary.
2. The petitioner was appointed as temporary Fair Price Shop Dealer of Shop No.25, Tadur Village, Dhone Mandal, Kurnool District. Vide proceedings dated 07.04.2017 he was given authorization till 31.3.2019 and later it was renewed on deposit of amount through challan along with his renewal application. The 2nd respondent basing on the report of the Tahsildar, Dhone dated 20.8.2019 with regard to the irregularities committed by a dealer issued a show cause notice framing three charges against him, he was directed to submit his explanation within 7 days from the date of receipt of the show cause notice.
3. The petitioner has submitted his explanation to the 2nd respondent and the 2nd respondent without considering the same and without recording the reasons has terminated the dealership of the petitioner in the month of September 3 GSP,J WP No.15035 of 2019 2019. Therefore, the petitioner has approached this Court by way of filing this writ petition.
4. Heard the arguments of learned counsel for the petitioner and learned Government Pleader for civil Supplies.
5. Learned counsel for the petitioner submits that the copy of the enquiry report has not been furnished to him and no opportunity of personal hearing was given and without any valid reasons the authorization was terminated.
6. Learned counsel for the petitioner placed reliance on the judgment of this Court in W P No.32713 of 2011. It was held as under:
"It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind. (Vide State of Orissa v. Dhaniram Luhar (2004) 5 SCC 568 and State of Rajasthan v. Sohan Lal (2004) 5 SCC 573) Reason is the heartbeat of every conclusion. It introduces 4 GSP,J WP No.15035 of 2019 clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity.
Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. (Vide:
Raj Kishore Jha v. State of Bihar (2003) 11 SCC 519, SC p.527 para 19; Vishnu Dev Sharma v. State of U.P. (2008) 3 SCC 172; SAIL v STO ((2008) 9 SCC 407, State of Uttaranchal v. Sunil Kumar Singh Negi (2008) 11 SCC 205, U.P.SRTC v Jagdish Prasad Gupta (2009) 12 SC 609, Ram Phal v. State of Haryana (2009) 3 SCC 258, Mohd.
Yusuf v Faji Mohammad (2009) 3 SCC 513 and State of H.P. v. Sada Ram (2009) 4 SCC 422)"
7. Placing reliance on the above judgment, it is submitted that order of termination does not contain any valid reason for termination. Only reason appear in the show cause notice dated 30.3.2017 was that the individual was appointed purely on temporary basis, therefore, he/she may be terminated at any time without prior notice. Accordingly, the Fair Price Shop Dealer was terminated without giving any opportunity. It clearly shows that there is violation of principles of natural justice. Hence the order of termination is bad in law and therefore it is liable to be set aside
8. Learned counsel for the petitioner placed reliance on the judgment of this reported in K. Radhakrishna Naidu vs director of Civil Supplies1, wherein it was held in para-6, as under :
"6. Therefore, under Proviso to Rule 28(o) it contained two limbs, firstly being the reasonable opportunity for 1 AIR 1996 AP 185 5 GSP,J WP No.15035 of 2019 representing his case in writing and secondly, for hearing in person. For representing the case before the authorities, a reasonable opportunity is contemplated in first limb of the proviso. The reasonable opportunity should be real and effective. Simply because the petitioner has submitted his explanation, it does not fulfil the requirement of reasonable opportunity. When the charges were framed basing on the report of the Mandal Revenue Officer, Galiveedu, the report itself forms the basic document and the said document is required to be given to the petitioner so as to enable the petitioner to effectively defend his case. The fact that the same was also mentioned in the show-cause notice issued to the petitioner, would clearly indicate that the basis for the show-cause notice is the only report. In the absence of furnishing such a report, the petitioner has specifically averred that the report of the Mandal Revenue Officer has not been furnished to him and therefore, he was not afforded a reasonable opportunity. To that, no specific averment was made in the counter filed on behalf of the respondents except stating that the petitioner was personally heard on 24.09.1990. It is not in dispute that the personal hearing was given, but the requirement of reasonable opportunity is also to be complied with in the same provision. The furnishing of necessary material which was made as a base for issuing the show-cause notice would form part of fundamental requirement of reasonable opportunity. Without furnishing such a document, asking the explanation of the petitioner would be nothing but empty ritual.'
9. In view of the ratio laid down in the above judgment, even in the instant case also, termination order shows that the order was based on the report of Tahsildar, Dhone, on two dates i.e., on 28.03.2017 and 30.03.2017 and also the resolution of the Prathibha Mahila Podupu Sangham, Dhone Village.
10. The contents of the affidavit reveal that the disciplinary authority has not furnished the report of the Tahsildar to the petitioner to enable him to submit his 6 GSP,J WP No.15035 of 2019 explanation. Unless a copy of the report of Tahsildar is furnished to the petitioner, he will not be able to give his explanation. On the other hand, the 2nd respondent observed in the proceedings of termination that the petitioner was a temporary dealer appointed purely on temporary basis as a fair price shop dealer vide proceedings dated 30.03.2017 the temporary appointment can be terminated at any point of time without prior notice.
11. Learned Government Pleader placed reliance on Clause 8(4) under APTSPDS Control Order, 2018 and submitted that the appointing authority may at any time in the public interest or on suo-motu or on receipt of complaint, he suspended or cancelled the authorization.
12. At this juncture, this Court is of the view to look into the provision under Clause 8(4) of the APTSPDS Control Order, 2018, reads as under:
"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."
13. Firstly, the order of termination is not contemplated under Clause 8(4) referred above. This is not a case of cancellation or suspension of authorization. But it is case of 7 GSP,J WP No.15035 of 2019 termination of the proceedings, which is not contemplated under the said provision.
14. Secondly, the petitioner has not been supplied with a copy of the report of the Tahsildar basing on which the termination order has been made. This is in violation of principles of natural justice of audi alteram partem. Unless the petitioner is given an opportunity to submit his explanation on receipt of report of Tahsildar, his appointment cannot be terminated.
15. Thirdly, merely because, the dealer was appointed purely on temporary basis vide proceedings dated 30.03.2017 it does not mean that he can straight away be terminated without proper notice. Even in a case of termination of temporary dealership the procedure under Clause 8(4) only has to be followed. There is no separate procedure contemplated for termination of temporary dealer.
16. Fourthly, as per Clause 8(4) an enquiry has been deemed necessary has to be conducted. In the instant case the enquiry does not appear to have been conducted as the report of the Tahsildar was only the basis of termination. The report of the Tahsildar is not served on the petitioner for submitting his explanation. The show cause notice refers to the report of the Tahsildar wherein three charges have been framed against the petitioner. Reasons recorded while suspension or cancellation of authorization that, as the 8 GSP,J WP No.15035 of 2019 petitioner was appointed as a temporary dealer, he does not require any notice is not a sufficient reason for termination of authorization. Therefore, the proceedings of the 2nd respondent are liable to be set aside.
17. Therefore, in view of the foregoing reasons, there is violation of principles of natural justice as proper opportunity was not afforded to the petitioner to submit her explanation, therefore the proceedings of the 2nd respondent are liable to be set aside.
18. With the above observations, the Writ Petition is allowed. No order as to costs.
Miscellaneous Petitions, if any pending, shall also stand closed.
_______________________ G. SHYAM PRASAD,J Date: 01-10-2019 Note: L.R. copy to be marked.
(b/o) Gvl 9 GSP,J WP No.15035 of 2019 HON'BLE SRI JUSTICE G. SHYAM PRASAD WRIT PETITION No.15035 OF 2019 Date : 01-10-2019 Gvl 10 GSP,J WP No.15035 of 2019