Valsamma Joseph vs The State Of Kerala
2022 Latest Caselaw 3790 Ker

WP(C) NO. 4403 OF 2022            1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 5TH DAY OF APRIL 2022 / 15TH CHAITHRA, 1944
                         WP(C) NO. 4403 OF 2022
PETITIONER/S:

               VALSAMMA JOSEPH
               AGED 62 YEARS
               D/O. JOSEPH, RESIDING AT KANICHERIL HOUSE, KAKKAYAM
               P.O., KOYILANDY TALUK, KOZHIKKODE DISTRICT, PIN-673
               615

               BY ADVS.
               GEORGE SEBASTIAN
               ARUN LUCKOSE ABRAHAM



RESPONDENT/S:

      1        THE STATE OF KERALA
               REPRESENTED BY THE DEPARTMENT OF FOOD AND CIVIL
               SUPPLIES , OFFICE AT GOVERNMENT SECRETARIAT, GROUND
               FLOOR, NORTH SANDWICH BLOCK, THIRUVANANTHAPURAM,PIN-
               695 001

      2        THE COMMISSIONER OF CIVIL SUPPLIESS ,
               CIVIL SUPPLIES OFFICE AT PUBLIC OFFICE, OPP MUSEUM
               VIKAS BHAVAN, THIRUVANANTHAPURAM DISTRICT,PINCODE-
               695 033

      3        THE DEPUTY CONTROLLER OF RATIONING (NORTH ZONE),
               CIVIL STATION, KOZHIKODE, CIVIL STATION P.O.,
               KOZHIKODE DISTRICT, PIN-673 020

      4        THE DISTRICT COLLECTOR,
               KOZHIKODE OFFICE AT WAYANAD ROAD, CIVIL STATION,
               ERANHIPALAM, KOZHIKODE, KERALA-673 020

      5        GEETHA
               D/O. GOPI, RESIDING AT AMBALAKKUNNU, AMBALAKKUNNU
               ADIVASI COLONY, KAKKAYAM, KOORACHUNDU VILLAGE,
 WP(C) NO. 4403 OF 2022                 2


               KOYILANDY TALUK, KOZHIKODE DISTRICT,PIN-673 615

      6        MINI,
               D/O. JANU, RESIDING AT AMBALAKKUNNU, AMBALAKKUNNU
               ADIVASI COLONY, KAKKAYAM, KOORACHUNDU VILLAGE,
               KOYILANDY TALUK, KOZHIKODE DISTRICT,PIN-673 615

               BY ADV ADVOCATE GENERAL OFFICE KERALA
               SMT.VIDYA KURIAKOSE, GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   05.04.2022,         THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 4403 OF 2022               3




                        P.V.KUNHIKRISHNAN, J
                  --------------------------------------------
                      W.P.(C.) No. 4403 of 2022
                     --------------------------------------
                 Dated this the 5th day of April, 2022


                                JUDGMENT

The above writ petition is filed challenging Ext.P9 order.

The petitioner was the Authorised Retail Ration Distributor in

respect of ARD No. 226 of Koyilandy Taluk in Kozhikode

District. The 3rd respondent conducted an inspection in the

said shop on 6.6.2013 and based on the finding in the said

inspection, a show cause notice was issued to the petitioner. It

is the case of the petitioner that, subsequently, without

conducting any enquiry and without affording an opportunity

of hearing, the petitioner's license was suspended by the 3 rd

respondent on 26.9.2013. The 3rd respondent gave a memo of

charges dated 5.3.2014 to the petitioner and on 30.4.2014, the

petitioner gave a detailed reply. In the said reply, it is

submitted that the petitioner has given specific answers to the

allegations against her. It is also submitted by the petitioner

that without conducting any enquiry with respect to the memo

of charges and the reply and without any independent

application of mind, the 4th respondent cancelled the license in

respect of the ration shop in question and directed the

petitioner to pay an amount of Rs.88,022/- as the price of the

ration articles allegedly misappropriated by the petitioner. It is

also stated that the said order was set aside by Ext.P2 by the

2nd respondent in view of the fact that the memo of charges

was given by the 3rd respondent and the cancellation order

was passed by the 4th respondent. It is the further case of the

petitioner that subsequently without any hearing and enquiry

and without adverting to Ext.P1 reply, the 3 rd respondent

cancelled the license by Ext.P3. The 2nd respondent confirmed

the said order by Ext.P5. But the 1 st respondent set aside the

said order and license was restored to the petitioner by Ext.P7

order. Respondent Nos. 5 and 6 challenged Ext.P7 order

before this Court by filing W.P.(C.) No. 17029/2019 which

resulted in Ext.P8 judgment by which the 1 st respondent was

directed to reconsider the matter. The 1 st respondent passed

Ext.P9 order by which it was held that Ext.P7 would stand set

aside and there is a further direction to appoint a new license.

Aggrieved by the same, this writ petition is filed.

2. Heard the learned counsel for the petitioner and the

learned Government Pleader.

3. The counsel for the petitioner submitted that Ext.P3

the original order of cancellation was passed without hearing

the petitioner and without considering Ext.P1 reply to the

memo of charges, which is against the mandate of Clause

45(8) of the Kerala Rationing Order. It is submitted that the

order was passed in utter violation of the principles of natural

justice. It is also submitted that when this Court directed the

1st respondent to consider the revision filed by the petitioner,

the 1st respondent ought to have considered the correctness

and legality of the order passed by the sub-ordinate

authorities. Therefore, Ext.P9 order is unsustainable.

4. The learned Government Pleader on the other hand,

submitted that this Court after considering the entire facts and

circumstances, delivered Ext.P8 judgment. The Government

passed Ext.P9 order strictly in accordance to Ext.P8 judgment.

The Government Pleader submitted that there is nothing to

interfere with Ext. P9.

5. This Court considered the contentions of the

petitioner and the Government Pleader. This case came up for

consideration before this Court earlier and this Court

delivered Ext.P8 judgment on 29.09.2021. It will be better to

extract the relevant portion of Ext.P8 judgment.

3. "I perused Exts.P2 and P3 orders. On a perusal of Ext.P2 order of the District Collector, it is clear that serious irregularities are detected by the officer concerned. After inspecting the shop of the 6th respondent by the Rationing Deputy Controller of Northern Region, serious irregularities were detected and the same is extracted in Ext.P2. Moreover, a Special Squad was constituted because of the serious allegations against the shop of the 6th respondent and the findings of the Special Squad is also discussed in Ext.P2 order. I don't want to make any further opinion about the same. Thereafter the Government, as per Ext.P3 order, pleased to set aside the same with following directions:

"സർക ർ ഇക ര ങൾ വശദമ യ പര ശശ ധച.

ഹർജക ര യട വ ദമഖങൾ പർണമ യ മഖവലടകടക ൻ കഴ യട$ങ ല ത കച ന)ത യകമ യ ഒര ത)രമ നമ$ ഇക ര തൽ കകടക ണ ടളളത3 എനത ന ല , യ ളട ദയന)യ ജ)വതസ ഹചര ങൾ പര ഗണച , ശക ഴ ശക 3 ജ$യൽ ടക യല ണ ത ലക ൽ എ.ആർ.ഡ . 226 ട= മൻ കലസൻസ യ യ ശ)മത വതമ ശജ സഫ ൽ നന3Bരപശയ ഗ ടചയത യ കടണതയ സ ധനങളട

ഇകശണ മക3 നരക ലളള വല പഴയ യ ഈ ക ടക ണ ശFഷൻ ക കളട നവ)കരണതട= ഭ ഗമ യളള പതക യ കമ)കരണങൾ ക യൽ ന പൽ വരതയടടണന3 ഉFപ വരതയത നശശഷവ മ ത പസത എ.ആർ.ഡ യട കലസൻസ3 പനTസ പച നൽകനത ന3 ഉതരവ കന."

4. I cannot agree with the above finding of the Government to set aside Ext.P2 order. When there is serious allegation against the 6th respondent which is narrated in Ext.P2, the Government cannot set aside the same simply because the husband of the 6th respondent is in a difficult condition or narrating some other humanitarian consideration. Again I don't want to make any further opinion. I am not satisfied with Ext.P3 order. It is a matter to be reconsidered by the 1st respondent after giving an opportunity of hearing to the petitioners and the 6th respondent. Therefore, without making any further opinion, this writ petition can be disposed directing the 1st respondent to reconsider the matter.

Therefore, this writ petition is disposed in the following manner:

1. Ext.P3 order is set aside.

2. The 1st respondent is directed to reconsider the matter, after giving an opportunity of hearing to the petitioners and 6th respondent, as expeditiously as possible, at any rate, within four months from the date of receipt of a copy of this judgment."

6. This Court after considering the entire facts and

circumstances of this case, observed that the Government

erred in interfering in the matter using a revisional authority.

This Court also specifically observed that the findings of the

Government to set aside the order cannot be accepted, when

there is serious allegation against the petitioner, which is

narrated in the order passed by the 1 st respondent. Admittedly,

Ext.P8 judgment became final. When there is specific

observation in Ext.P8 judgment, there is nothing wrong in

passing an order like Ext.P9 by the 1 st respondent. According

to me, the Government considered all the contentions of the

petitioner and passed Ext.P9 order. There is nothing to

interfere with Ext.P9 order, in the light of Ext.P8 judgment.

Therefore, this writ petition is devoid of any merit and

hence, the same is dismissed.

SD/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 4403/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE DETAILED REPLY DATED 30.4.2014 GIVEN BY THE PETITIONER

Exhibit P2 A TRUE COPY OF THE ORDER DATED 5.10.2017 PASSED BY THE 2ND RESPONDENT

Exhibit P3 A TRUE COPY OF THE ORDER DATED 18.12.2017 PASSED BY THE 3RD RESPONDENT

Exhibit P4 A TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 8.2.2018 FILED BEFORE THE 2ND RESPONDENT

Exhibit P5 A TRUE COPY OF THE ORDER DATED 6.10.2018 PASSED BY THE 2ND RESPONDENT

Exhibit P6 A TRUE COPY OF THE APPEAL MEMORANDUM DATED 30.10.2018 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

Exhibit P7 A TRUE COPY OF THE ORDER DATED 6.6.2019 PASSED BY THE 1ST RESPONDENT

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 29.9.2021 IN WPC NO.17029/2019

Exhibit P9 A TRUE COPY OF THE ORDER DATED 9.12.2021 PASSED BY THE 1ST RESPONDENT

Exhibit P10 A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WPC NO.17029/2019