Bandaru Mastan Rao vs The State Of Andhra Pradesh
2022 Latest Caselaw 1157 AP

           THE HON'BLE SRI JUSTICE M.GANGA RAO

                   Writ Petition No. 16490 of 2021

ORDER:

This Writ Petition is filed to issue a writ of mandamus to declare the

action of the respondent No.3 in suspending the authorization of the

petitioner bearing Rc.No.I/1230/2021 dated 21.07.2021 as illegal, arbitrary

and contrary to the Andhra Pradesh State Targetted Public Distribution

System (Control) Order, 2018 (in short "the Control Order") and

consequently, to set aside the same.

2. It is the case of the petitioner that he was appointed as Fair Price

Shop Dealer of Shop No.0816035 of China Kothapalli Village, Addanki

Mandal, Prakasam District in the year 2012 and he was issued

authorization as per the provisions of the Andhra Pradesh State Public

Distribution System (Control) Order, 2008. Same was renewed from time

to time and renewal was granted upto March, 2020. He has submitted an

application along with required challan for renewal of the authorization.

When the application is pending for renewal, as per the provisions of the

Control Order, 2018, it is deemed to be renewed and subsisting. The

petitioner was allowed to lift the essential commodities for the month of

July, 2021 also. The petitioner had been distributing the essential

commodities to the cardholders since 14 years without any complaint. On

04.07.2021, the Enforcement Deputy Tahsildar, Addanki along with

Enforcement Deputy Tahsildar, Ongole-I and the Village Revenue Officer,

China Kothapalli had inspected the petitioner's shop on 08.07.2021 at

about 8.15 P.M in the presence of the mediators and panchanama was

also drafted without comparing the physical stock available in the Fair

Price Shop with the stock report generated from Adhaar Enabled Public

Distribution System (AEPDS) and variations in the stocks were noted.

The Enforcement Deputy Tahsildar, Addanki submitted a report on

05.07.2021 to the Revenue Divisional Officer, Ongole to initiate

proceedings under 6-A of the Essential Commodities Act, 1955 and also

disciplinary proceedings under the provisions of the Control Order, 2018.

Based on the report dated 05.07.2021 of the Enforcement Deputy

Tahsildar, Addanki, a show cause notice was issued to the petitioner on

06.07.2021 asking his explanation why his dealership authorization should

not be cancelled. The petitioner submitted his explanation on 12.07.2021

explaining the detailed reasons for the variations and denying the charge.

The 3rd respondent considering the explanation of the petitioner issued the

impugned order dated 21.07.2021 suspending the petitioner's

authorization, pending enquiry. Being aggrieved by the same, the

petitioner filed the present writ petition.

3. Smt Kavitha Gottipati, learned counsel for the petitioner would

contend that the 3rd respondent authority having issued show cause notice

dated 06.07.2021, petitioner submitting explanation on 12.07.2021,

without considering the said explanation in its proper perspective, having

prima facie, held that the charge is proved, now passed the impugned

suspension order. She would further submit that the impugned

suspension order is contrary to the provisions of clause 8 (4) of the

Control Order, 2018 as no sort of enquiry was conducted by the 3rd

respondent, not even applied his mind to the facts of the case to come to

the conclusion that the petitioner shall be kept under suspension as held

by this Court in K.Prabhavathi Vs. The State of A.P1, wherein it is held

that not all follies of a dealer invariably require his suspension pending

enquiry and the appointing authority must carefully differentiate between

the prima facie case for holding disciplinary enquiry and a compulsory

2020(6) ALD 209

case which requires not only disciplinary enquiry but also suspension

pending enquiry. As per the provisions of clause 20 (i) of the Control

Order, 2018, the Tahsildar/Inspecting Official has to send separate reports

one to the Collector (CS)/Joint Collector to initiate proceedings under the

provisions of the 6-A of the Essential Commodities Act, 1955 and another

to the Revenue Divisional Officer, disciplinary authority to take disciplinary

action against the dealer. But a report was sent to the Collector (CS) to

take disciplinary action but he is not the competent authority under the

provisions of the Control Order, 2018 to take disciplinary action but he is

only a 6A authority. A report was sent to the Revenue Divisional Officer to

initiate 6-A proceedings but he is not competent and authorized to initiate

such proceedings. He is only disciplinary authority under the provisions of

the Control Order, 2018. It shows non application of mind by the

disciplinary authority to the provisions of the Control Order, 2018 and also

to the report submitted by the inspecting officials which is contrary to the

provisions of the clause 20 (i) of the Control Order, 2018. The petitioner

submitted his explanation to the excess stock in the month of February,

2021 under MDM scheme Release Order

No.RO/MDM/0816035/02/2021/1 that he has converted 30.09 Qtls.,

PMGKAY rice into MDM rice and allotted the same to MPP School, China

Kothapalli and the stock was handed over to the dealer in the month of

March, 2021 and due to COVID pandemic, schools were not opened and

hence, stocks were not lifted by the Headmasters. The said explanation

was not considered properly. Thereafter the petitioner was removed him

from the Fair Price Shop Dealership and the same was allotted to the

other chosen person at the instance of the local political people. She

further submits that on earlier occasion when the 2nd respondent

suspended the petitioner's authorization on 07.08.2020, he has

approached this Court by way of writ petition, in pursuance of the orders of

this Court, passed in W.P.No.14268 of 2020 dated 06.10.0220, the

petitioner's authorization was restored, observing that as the petitioner's

Fair Price Shop Dealership has been suspended without affording any

opportunity, the petitioner shall be permitted to distribute the essential

commodities to the cardholders, pending completion of enquiry by the

respondent No.2 and directed the respondents to complete the enquiry

within a period of 90 days. Again when the petitioner's authorization was

suspended on 01.12.2020, the same was restored in pursuance of the

orders of this Court dated 23.02.2021 in W.P.No.25346 of 2020. The

respondent authorities without completing the earlier enquiries find it easy

to keep the petitioner out of the dealership by suspending the

authorization instead of completing enquiries as per the provisions of

clause 8 (4) of the Control Order, 2018 and law laid down by this Court

and as such, the suspension order is motivated without any valid reasons.

The impugned suspension order is passed contrary to the provisions of

clause 8 (4) of the Control Order, 2018 and the same is liable to be set

aside.

4. Per contra, learned Assistant Government Pleader for Civil

Supplies while reiterating the averments of the counter would contend that

the petitioner very often committed irregularities in distributing the

essential commodities. On inspection by the officials it is found that the

there are variations in the stocks. Accordingly, disciplinary proceedings

were initiated as per the provisions of the Control Order, 2018 and the

petitioner was placed under suspension pending enquiry. As the

disciplinary authority is empowered to take appropriate disciplinary action

as per the provisions of the clause 8 (4) of the Control Order, 2018 the

impugned suspension order was passed in accordance with the provisions

of the Control Order, 2018. The Enforcement Deputy Tahsildar, Addanki

submitted reports on 05.07.2021 as required under the provisions of

clause 20 (i) of the Control Order, 2018 to initiate proceedings under the

provisions of 6-A of the Essential Commodities Act and to initiate

disciplinary action for the irregularities committed by the petitioner as per

the provisions of the Control Order, 2018. Accordingly, the disciplinary

authority has suspended the petitioner's authorization by the impugned

suspension order. On inspection, huge variations were found in the

stocks. The petitioner's explanation was called for. However, against the

impugned suspension order, appeal lies to the Joint Collector. Without

availing the appeal provision, the petitioner straightaway approached this

Court. The writ petition is not maintainable and liable to be dismissed.

5. Having considered the facts and circumstances of the case and

submissions of the learned counsel, and on perusal of the record, this

Court found that the petitioner was appointed as permanent Fair Price

Shop Dealer in the year 2012. When his shop was inspected by the

Enforcement Deputy Tahsildar, Addanki along with Enforcement Deputy

Tahsildar, Ongole-I and Village Revenue Officer, China Kothapalli on

04.07.2021 at 08.15 PM in the presence of mediators, variations were

found in the physical stocks available in the Fair Price Shop to that of the

report generated in the AEPDS website and prepared panchanama. A

report was submitted to the Collector (CS), Ongole on 05.07.2021 by the

Enforcement Deputy Tahsildar, Addanki in vernacular language to initiate

proceedings under 6-A of the Essential Commodities Act, 1955 and till

finalization of the 6-A proceedings, orders may be given to make

alternative arrangements without causing inconvenience to the

cardholders and take disciplinary action against the dealer under the

provisions of the Control Order, 2018. The report is filed along with

counter at Page 17 to 20. Simultaneously, the Enforcement Deputy

Tahsildar, Addanki submitted a report on 05.07.2021 to the Revenue

Divisional Officer - Appointing Authority and disciplinary authority under

the provisions of the Control Order, 2018 to take appropriate action under

the provisions of the 6-A of the Essential Commodities Act, 1955 and

asked to give permission to make alternative arrangements pending 6-A

proceedings against the dealer and Collector (CS) Ongole to take

appropriate action under the provisions of the Control Order. But the

Enforcement Deputy Tahsildar, Addanki has not asked the Revenue

Divisional Officer in specific terms to initiate disciplinary action against the

dealer as required under the provisions of Clause 20 (i) of the Control

Order, 20128. This Court in W.P.No.500 of 2020 dated 08.01.2020 while

considering clause 20 (i) of the Control Order, 2018 held at Para-10 of the

judgment as follows:

"As per Clause 'q' of Circular Memo issued by Commissioner, Civil Supplies in No.21/100/2015-AD.1 PP&CCS dated 28.09.2015, proceedings under Section 6-A of E.C.Act are separate, as it empowers to decide as to whether the seized commodities are liable for confiscation or otherwise and no order of suspension/cancellation of authorisation to be issued, based on report. In view of memo and requirement under Clause 20(i) of Control Order, 23018, in the absence of any separate report for initiation of disciplinary action against the dealer, the order passed by second respondent cannot be sustained, consequently the same is liable to be set aside, declaring the same as illegal and contrary to Clause 20 (i) of Control Order , 2018."

The disciplinary authority has not properly considered the petitioner's

explanation dated 12.07.2021 submitted to the show cause notice dated

06.07.2021 in its proper perspective objectively with reference to the

provisions of clause 8 (4) of the Control Order, 2018, which reads as

follows:

"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 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.

The disciplinary authority without considering the explanation of the

petitioner stated that for the month of February, 2021, Release Order for

MDM rice of 3588 KGs was issued but the same was not handed over to

the MPP School due to COVID-19 pandemic, schools were not opened.

Hence, this Court found that there is much force in the submissions of the

counsel for the petitioner that the respondent authorities are after the

petitioner to see that the petitioner's authorization is cancelled to enable

them to appoint their own chosen person as the Fair Price Shop Dealer at

the instance of the local politicians and the same cannot be ruled out as

the way in which the disciplinary authority has passed the impugned

suspension order without properly considering the evidence on record

contrary to the provisions of Clause 20 (i) of the Control Order, 2018.

6. In view of the above discussion, the impugned order dated

21.07.2021 suspending the petitioner's Fair Price Shop authorisation is

liable to be set aside and is accordingly set aside, directing the

respondents to restore the petitioner's authorization and continue to

supply the essential commodities to the petitioner to supply the same to

the cardholders without any interruption, pending final disciplinary action

against the petitioner by conducting enquiry as per the provisions of

clause 8 (4) of the Control Order, 2018 and the law laid down by this Court

in B. Manjula v. District Collector, Civil Supplies, Kurnool and

others2, Pidikiti Sailaja v. State of Andhra Pradesh.3, C. Durga

Srinivasa Rao and others v. The State of Andhra Pradesh and

2015 (4) ALT 572

2015 (2) ALT 6657

others4, wherein it is held that before cancellation of the authorization, the

disciplinary authority has to conduct himself an enquiry to prove the

charges leveled against the dealer, by giving an opportunity to defend his

case in the enquiry.

7. Accordingly, the Writ Petition is allowed. No order as to costs.

Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.

___________________________ JUSTICE M.GANGA RAO

-02-2022 CSR

2015 (6) ALD 359

THE HON'BLE SRI JUSTICE M.GANGA RAO

Writ Petition No. 16490 of 2021

-03-2022

CSR