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THE HONOURABLE SRI JUSTICE BATTU DEVANAND
Writ Petition No.16339 of 2022
ORDER:-
This Writ Petition has been filed by the Petitioner
seeking the following relief:
"to declare the action of the respondent
No.4 in cancellation the authorization of the petitioner F.P.Shop dealer in his Proceedings in Rc.J/1403/2014, dated 04.05.2022, even without hearing petitioner, is illegal, arbitrary, high handed, violation of principles of natural justice, in violation of Article 19 (1) (g) of the Constitution of India and also contrary to the Control Order, 2008 and consequently, direct the respondents to set aside the cancellation order of authorization of petitioner and allow the petitioner to distribute commodities to the card holders.
2. Heard learned counsel for the petitioner and the learned Government Pleader for Civil Supplies appearing for the respondents and perused the record. 2
3. The case of the petitioner is that the petitioner was appointed as F.P. shop dealer for Shop No.45 of Ongole Town, Prakasam District in the year 2009 and since then he is distributing commodities to the card holders all these years without any complaint either from card holders or from authorities. On 21.09.2015, the respondent No.5 inspected the fair price shop of the petitioner and alleging certain irregularities seized the stock under cover of panchanama and filed report before the respondent No.4. Basing on the report of the 5th respondent, the respondent No.4 suspended the authorization of the petitioner through proceedings Rc.J/1403/2014, dated 16.10.2014.
4. Aggrieved by the said Order, the petitioner preferred appeal before the respondent No.3 on 29.10.2014. Since no order are passed on Stay Petition by the respondent No.3, he approached this Court by filing W.P.No.33494 of 2014 and this Court by Order 3 dated 07.11.2014 directed the respondent No.3 to dispose of the appeal within one month. Accordingly, the respondent No.3 remanded the matter to respondent No.4/R.D.O., Ongole, with a direction to conduct detailed enquiry within one month. Thereafter, the petitioner filed a representation before respondent NO.4 on 12.08.2015 requesting to permit the petitioner for examination of inspecting Officers, who inspected FP Shop and also permit to examine some of the Card Holders attached to the shop to falsify the inspection report, but the respondent No.4 did not permit the petitioner as requested by her. As the respondent No.4 did not finalize the disciplinary proceedings, he approached this Court by filing W.P.No.6380 of 2022 and this Court by Order dated 16.03.2022 directed the disciplinary authority to complete the enquiry within a period of four weeks. Thereafter, the petitioner again approached the respondent No.4 by way of representation on 02.05.2022, but the respondent No.4 without considering 4 her representation passed the impugned Order. Aggrieved by the same, the petitioner filed the present Writ Petition.
5. The fourth respondent - Revenue Divisional Officer, Ongole, Prakasam District, filed counter affidavit, stating that the Enforcement Deputy Tahsildar, Ongole-1 inspected the petitioner's fair price shop on 21.09.2014 and submitted a report to the disciplinary authority/Revenue Divisional Officer, Ongole on 22.09.2014. An inspection was conducted in the presence of panchanamadars and as per the panchanama report, huge variations were found during the inspection. In view of the huge variations of stock, the petitioner was issued show cause notice and subsequently, suspended authorization of her dealership vide Rc.No.J/1403/2014 dated 16.10.2014 pending finalization of disciplinary proceedings. It is stated that, the petitioner did not submit any representation to examine the inspecting 5 officers who inspected the petitioner's fair price shop is incorrect.
6. It is further stated that the petitioner filed W.P.No.6380 of 2022 before this Court, wherein, this Court directed the disciplinary authority to complete the enquiry within four weeks therefrom. It was also made clear that, if no temporary dealer is appointed to the subject shop, the respondents are directed to supply the commodities to the petitioner, pending disposal of the enquiry.
7. In view of the direction of this Court, the petitioner submitted representation dated 20.04.2022 before the Revenue Divisional Officer, requesting for allotment of essential commodities. In reply, she was informed that, in the light of the orders of this Court, a temporary dealer was appointed to the subject fair price shop and denied to supply the essential commodities. It is submitted that, enquiry was completed in the disciplinary 6 proceedings and orders were passed by the Revenue Divisional Officer on 04.05.2022 within the time stipulated by this Court. It is also submitted that, the petitioner was informed about the appeal provision before the Appellate Authority, but without exhausting the Appeal provision, the petitioner directly approached this Court.
8. The petitioner filed reply to the counter affidavit filed by the fourth respondent, stating that the Revenue Divisional Officer has not conducted any disciplinary proceedings and did not even consider the petitioner's representations dated 12.08.2015 and 02.05.2022 and passed the impugned order, without following principles of natural justice and requested to grant relief as prayed in the writ petition.
9. On careful perusal of the Proceedings of the respondent No.4, dated 04.05.2022, it appears that the fair price shop of the petitioner was inspected by the 7 Enforcement Deputy Tahsildar, Ongole Urban, along with the Vigilance CI and his staff and alleging certain irregularities committed by the Fair Price Shop dealer registered a case under Section 6-A of the E.C. Act, 1955, for contravention of the provisions of the A.P.S.P.D.S Control Order, 2008. The stocks available in the shop were seized under a cover of Mediator's Report and handed over the same to the neighbouring Fair Price Shop dealer for safe custody. A report was submitted to the Revenue Divisional Officer, Ongole, to initiate necessary action against the delinquent dealer. Basing on the Inspection Report, the respondent No.4 prima facie satisfied that the petitioner has committed irregularities in distribution of essential commodities to the card holders and diverted the same into the black market and accordingly, passed the Order for suspension of authorization of the petitioner. Aggrieved by the same, the petitioner preferred an appeal before the Appellate Authority and the appellate authority passed Orders on 8 14.07.2015 remanding the matter to the respondent No.4 with a direction to finalise the disciplinary proceedings within two weeks from the date of receipt of the orders by giving affordable opportunity to the dealer. It is stated in the impugned Order that the dealer was given affordable opportunity and the petitioner and her counsel have attended the enquiry. In the show cause notice, the respondent No.4 framed three charges against the petitioner. The petitioner has submitted her explanation. Considering the same, the respondent No.4 found that all the charges are held proved and accordingly, the authorization of the petitioner is cancelled.
10. Learned counsel for the petitioner vehemently contended that the petitioner filed representation on 12.08.2015 before the respondent No.4 and requested to permit her for examination of Inspecting Officials, who inspected her fair price shop and also permit to examine 9 some of the card holders attached to the shop to falsify the inspection report. But, the respondent No.4 did not permit her to examine them. The petitioner again filed a Representation on 02.05.2022 requesting to permit her for examination of the inspecting officials and some of the card holders, but the respondent No.4 without considering the request of the petitioner and without following the procedure passed the impugned Order of cancellation of authorization of the petitioner. The learned counsel for the petitioner further submits that the order of cancellation of authorization of the petitioner's fair price shop passed by the respondent No.4 without following the due process of law and as such it is unsustainable under law and sought to set aside the same by allowing the Writ Petition.
11. Learned counsel for the petitioner relied on a Order of this Court in B. Manjula vs. District Collector, Civil 10 Supplies, Kurnool and others 1 . This Court carefully perused the said Order. The learned Single Judge of this Court after considering several orders passed by this Court and the Hon'ble Apex Court has considered the procedure to be followed by the authorities to conduct enquiry and to pass orders in disciplinary proceedings. In the said judgment at paragraph No.9 to 11 held as under:
"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.1
2015 (4) ALT 572 11 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. In the present case, though the petitioner made representations twice requesting the respondent No.4 to permit the petitioner to examine the inspecting officials and some of the card holders, the said request was not considered and thereby the respondent No.4 failed to hold a detailed enquiry, which amounts to not affording the dealer an opportunity of a fair hearing.
13. A perusal of the impugned Order shows that the respondent No.4 has not even attempted to hold an enquiry by permitting the petitioner to examine the inspecting officials and some of the card holders. The respondent No.4 simply relying on the report of the 12 inspecting officials concluded the disciplinary proceedings. It is further to be noted that, it is evident on perusal of the impugned order that no reasons are recorded by the respondent No.4 to come to a conclusion to cancel the authorization of the petitioner.
14. In G. Vallikumari Vs. Andhra Education Society and others 2 , the Supreme Court held at para-19 as follows:
" The requirement of recording reasons by every quasi- judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognised facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned".2
(2010) 2 SCC 497 13
15. In view of the above said reasons, as the respondent No.4 failed to follow the procedure to conduct disciplinary enquiry, in our view, the impugned order cannot be sustained and the same is accordingly liable to be set aside.
16. Accordingly, the Writ Petition is allowed with the following directions:
i) Rc.J/1403/2014, dated 04.05.2022 of the respondent No.4 is set aside and the authorization of the petitioner is restored; and
ii) the respondent No.4 is directed to permit the petitioner to function as Fair Price Shop dealer as usual.
17. There shall be no order as to costs.
Miscellaneous petitions pending, if any, in this case shall stand closed.
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JUSTICE BATTU DEVANAND
Date : .10.2022
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eha
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THE HONOURABLE SRI JUSTICE BATTU DEVANAND WP No. 16339 of 2022 Date : -10-2022 eha