Andhra Pradesh High Court - Amravati

Kola Sushmitha, vs The State Of Andhra Pradesh, on 15 February, 2023

Bench: D Ramesh

             THE HONOURABLE SRI JUSTICE D.RAMESH

                   WRIT PETITION No.23365 of 2022

ORDER:

The Writ Petition is filed under Article 226 of the Constitution of India

assailing the action of 3rd respondent in cancelling of authorization of the

petitioner vide Rc.No.2284/2021-B dated 30.03.2022.

2. Heard learned counsel for petitioner and learned counsel appearing

for the respondents.

3. Learned counsel appearing for the petitioner contended that the

impugned orders passed by the 4th respondent is contrary to the Control

Orders of the Andhra Pradesh State Targeted Public Distribution System

(Control) Order, 2018 notified on 11.08.2018. According to the said Order,

provision 8(4) deals with the suspension and cancellation of the

authorisation. According to provision 8(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. Thus conducting of enquiry is mandatory, whereas

in the instant case, the respondents have not conducted any enquiry, but

only based on the report submitted by the Tahsildar, Tadepally, the

respondents issued notice to the petitioner and considering the remarks

only, passed the final orders and cancelled the license/authorisation of the

petitioner.

4. Further learned counsel has also relied on the judgment of this Court

in C.Durga Srinivas Rao and Others Vs. the State of Andhra Pradesh

and Others1, wherein this court passed certain guidelines to be followed

while passing the orders for cancellation of the licences, which reads as

follows:

"27. From a conjoined reading of the provisions of the Control Order,

more particularly clause 5 and 24 read with the decisions of this Court, the

following conclusions can be drawn.

(i) The appointing authority can suspend the authorisation under clause 5(5) of the Control Order, if grave charges exist and the case warrants suspension, but should not be exercised in a routine manner without applying mind;

(ii) The power of suspension under clause 5(5) of the Control Order includes the power to suspend the authorisation pending enquiry and no show cause notice is necessary before exercising such power;

(iii) The order of suspension should be followed by a show cause notice immediately by specifying the charges in clear terms and giving sufficient time to the dealer to submit his/her explanation;

(iv) The charges so levelled may contain two parts viz., one, containing serious charges, which may attract the cancellation of authorisation and another containing marginal variations and minor irregularities at fair price shops as indicated in clause 24 of the Control Order.

(v) While issuing the show cause notice, the appointing authority shall enclose a copy of the report of any subordinate officer or a copy of the complaints received, which prompted him to take action;

(2015)6 ALD 359

(vi) After receiving the explanation from the dealer, in case of denial by him, the appointing authority shall hold an enquiry and prove the charges levelled against the dealer. Such enquiry should be fair by placing the material before the dealer but cannot be elevated to the level of a regular court trial. The burden lies on the appointing authority to prove charges. The responsibility to hold enquiry shall not be delegated;

(vii) The enquiry shall be completed as soon as possible but not later than ninety days from the date of suspension. After completion of enquiry, the appointing authority shall record reasons in respect of each charge and pass appropriate orders in accordance with the Control Order.

(viii) The order so passed should be communicated to the dealer immediately and shall not be implemented till the expiry of 30 days, the period for preferring appeal.

(ix) It has to be noted that in all cases of proven charges, it is not necessary for the appointing authority to cancel the authorisation and in appropriate cases, he/she can pass suitable orders imposing penalty or let off with a warning."

5. In the light of the above guiding principles, (vi) clearly stipulated that

the appointing authority shall hold an enquiry and prove the charges

levelled against the dealer. The burden lies on the appointing authority to

prove the charges and the responsibility to hold the enquiry shall not be

delegated. But in the instant case on perusal of the impugned order, the

respondents have not conducted enquiry before passing the impugned

order. Hence, the impugned order is not only contrary to the provision 8(4)

of the Control Order 2018 but also in violation of the guidelines prescribed

by this Court in the above referred judgment.

6. Though the respondents failed to file their counter, learned

Government Pleader appearing on behalf of the respondents taken

objection with regard to filing of the Writ Petition, without availing the

statutory remedy provided for appeal as per the control order 2018. 24(b)

of the Control Order, 2018 deals with the Appeal, which reads as follows:

"24 (b): any fair price shop dealer aggrieved by an order of the appointing authority concerned denying the issue or renewal of authorization (License) of the fair price shop dealer or cancellation of the authorisation (License) may appeal to District Collector, the appellate authority, within thirty (30) days of the date of receipt of the order and appellate authority shall, as far as practicable dispose of the appeal within a period of sixty (60) days;"

7. As per the above said provision, the petitioner has to file an appeal

before the appellate authority within a period of 30 days. In view of the

same, learned Government Pleader requested to dismiss the writ petition

for not filing the statutory appeal.

8. Considering the submissions made by both the counsel and also on

perusal of the orders passed by the respondents on merits, this court

satisfied that no enquiry was conducted before passing the impugned

orders dated 30.03.2022. However, in view of 24(b) of Control Order, 2018

this court is not inclined to pass any order on merits but the petitioner was

given liberty to file an appeal, within 30 days from the date of receipt of a

copy of the order, before the 3rd respondent/competent authority. On filing

of such appeal, the authority concerned is directed to consider and dispose