Smt. Nunshavath Radha Bai vs The State Of Andhra Pradesh
2021 Latest Caselaw 4121 AP

          HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

                     Writ Petition No.8809 of 2021

ORDER:

This writ petition is filed questioning the impugned proceedings

dated 31.10.2020 of the Revenue Divisional Officer, Guntur, suspending

the authorisation of the petitioner as fair price shop dealer pending

enquiry as per Clause 8(4) of A.P. State Targeted Public Distribution

(Control) Order, 2018 (for short 'Control Order, 2018').

Case of the petitioner is that, she was appointed as fair price shop

dealer in the year 2017 for the shop No.0781060 of Guntur Town on

permanent basis and due to change of the ruling party in Government,

the local leaders have brought pressure on her to submit resignation but

she refused to do so; while so, on 06.10.2020, subject fair price shop

was inspected by the civil supplies authorities and they could not find

any variations in the stocks and there is no other irregularity; in spite of

the same, they alleged variations in the stocks and the Mandal Revenue

Inspector submitted a report to the 2nd respondent on 13.10.2020

recommending disciplinary action and based on the same, the 2nd

respondent issued show cause notice dated 31.10.2020 with the

following charges:

1. Charge No.I. The F.P. Shop Dealer is used to purchase the PDS rice at the rate of Rs.7/- per Kgs and store the same in F.P. shop and sell the same to B.Sankar, Vasavi Nagar, Guntur at high rates i.e., Rs.10 per Kg that the rates prescribed by the Government for his personal gain and thus violated Cl.19(f) of APSTPDS (Control) Order, ,2018.

2. Charge No.II. That the F.P. Shop Dealer failed to distribute the stocks to the cardholders properly which lead to excess of (+) 1380.00 Kgs of PDS Rice, (-) 24.00 Kgs of Sugar, (+) 41.00 Kgs in Red Gram Dall, (-) 0.43 salt with reference to ground stocks and Epos device report. Thus she violated Cl.12(3) of APSTPDS (Control) Order, 2018.

KVL, J WP No.8809 of 2021

3. Charge No.III. That the F.P. Shop dealer indulged in clandestine business and kept the excess stocks in the shop as shown above without distributing to the card holders with an intention to divert the same into black market for her personal gain Thus, she violated Cl.21(c) of APSTPDS (Control) Order, 2018.

On the same day, impugned order suspending the authorisation was

passed without conducting any enquiry; the alleged variations in the

stocks are fictitious and not based on actual records; the impugned

order does not show as to what are the actual stocks supplied to the

petitioner, what are the opening balances, what are the sales and what

is the balance as per Epos machine. According to rule 8(4) of the Control

Order, 2018, it is mandatory on the part of the 2nd respondent to

conduct enquiry even for placing the authorisation under suspension and

the same was held in WP No.3112 of 2020 dated 14.02.2020; there is no

basis for the allegation made in the impugned order that the petitioner

used to purchase the PDS rice for Rs.7/- per Kg from the cardholders and

selling the same at Rs.10/- per Kg; the report dated 13.10.2020

submitted by the Mandal Revenue Inspector was not furnished to the

petitioner and though the authorisation was suspended on 31.10.2020,

till date no enquiry is conducted. Hence, the writ petition.

When the writ petition came up for admission on 03.05.2021, this

Court passed the following interim order.

"For the reasons stated in the supporting affidavit, the order of suspension vide proceeding Rc.No.2795/2020-B, dated 31.10.2020 passed by the Revenue Divisional Officer, Guntur is hereby suspended on the ground that there is a lot of variation between the stock available and the stock alleged to have been seized."

Counter-affidavit along with the vacate petition was filed by the

Revenue Divisional Officer stating inter-alia that the petitioner has

violated Clause12(3) of the Control Order, 2018 for not maintaining the

KVL, J WP No.8809 of 2021

records properly and that there is excess of 1380 Kgs of PDS rice,

shortage of 24 Kgs of sugar, excess of 41 kgs of RG Dhall, shortage of

0.43 Kg salt between the ground stocks and e-Pos device report;

petitioner is in the habit of purchasing of PDS rice @ 7/- per kg from the

card holders and sell the same to the needy at higher rates @ 10/- per

kg for her personal gain without distributing the same to the original

card holders; petitioner has got alternative remedy of appeal before the

Appellate Authority; the panchanama clearly establishes that the

petitioner has violated Clause10(f)(g)(r) of the Control Order, 2018.

Reply-affidavit has been filed by the petitioner denying the

contents of the counter-affidavit and stating that false panchanama has

been prepared showing the variation in stock.

Heard Sri D.Krishna Murthy, learned counsel for the petitioner and

the learned Assistant Government Pleader for Civil Supplies.

The impugned order is only a suspension pending enquiry. The

judgment relied upon by the learned counsel for the petitioner in WP

No.3112 of 2020 does not apply to the facts of the present case. The

impugned order in the said case is an order terminating the authorisation

of the fair price shop dealer without conducting any enquiry. The issue

therein was whether the competent authority is bound to issue show

cause notice to the petitioner and conduct enquiry before passing the

termination order based on Clause 8(4) of the Control Order, 2018. The

said clause reads as follows:

"(4) 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 authorisation issued or deemed to be issued to him/her under this clause."

KVL, J WP No.8809 of 2021

Basing on the said clause, it was held that 'conducting of enquiry is sine

quo non for suspension or cancellation of authorisation. But the

suspension, according to the said clause 8(4), is a suspension as a

measure of punishment and not a suspension pending enquiry and as in

the present case, as the suspension is pending enquiry and not as a

measure of punishment, there is no need to issue show cause notice'.

In the case on hand, show cause notice was issued on the same

day on which the suspension order was passed to show cause as to why

authorisation should not be cancelled. Whether there is any variation in

the stock or not, is a subject matter of enquiry and this Court cannot go

into the disputed questions of fact as to whether there is any variation in

the stock or not and as to whether the petitioner was purchasing the PDS

rice @ 7/- per kg and selling the same @ 10/- per kg or not? Even though

learned counsel for the petitioner contended that the report of the

Mandal Revenue Inspector was not served on the petitioner, he fairly

concedes that copy of the same is enclosed to the counter-affidavit. He

also contended that the mediatornama was not supplied to the

petitioner, but the copy of the same is also enclosed to the counter-

affidavit. As the show cause notice was already issued to the petitioner

to show cause as to why her authorisation should not be cancelled, the

petitioner is given liberty to submit her explanation to the show cause

that was already issued to her, within a period of two weeks from the

date of receipt of a copy of this order, raising all the contentions that

were raised before this Court and basing on the explanation that will be

submitted by the petitioner, the Competent Authority is directed to

conduct enquiry after giving reasonable opportunity the petitioner and

pass appropriate orders thereon strictly in accordance with law. As there

is an interim direction pending writ petition, the respondents are

KVL, J WP No.8809 of 2021

directed to supply the essential commodities to the petitioner's fair

price shop, pending enquiry.

The writ petition is, accordingly, disposed of. No order as to

costs.

Consequently, miscellaneous petitions, if any pending, in this writ

petition, shall stand closed.

_______________________ KONGARA VIJAYA LAKSHMI, J Date: 21.10.2021 BSS

KVL, J WP No.8809 of 2021

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

Writ Petition No.8809 of 2021

Date: 21.10.2021

BSS