Kerala High Court

R. Vijayakumar vs The State Of Kerala on 23 December, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
                  THE HONOURABLE MR.JUSTICE SHAJI P.CHALY


           Friday, the 23rd day of December,2022/2nd Pousha,1944

                             WA NO.1970 OF 2022

   AGAINST THE JUDGMENT DATED 06.12.2022 IN WP(C)6686/2018 OF THIS COURT

                                   ---

APPELLANT/WRIT PETITIONER:

     R.VIJAYAKUMAR, AGED 55 YEARS, SON OF RAJAKRISHNAN, PROPRIETOR,
     MARIAN SPICES, 8/1767, JAWAHAR ROAD, KOOVAPADAM, MATTANCHERRY-
     682002.

BY SENIOR ADVOCATE SRI.S.SREEKUMAR, ADV.SRI.N.M.MADHU &
ADV.SRI.C.S.RAJANI

RESPONDENTS/RESPONDENTS:

  1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF CIVIL
     SUPPLIES, THIRUVANANTHAPURAM - 695001.
  2. KERALA STATE CIVIL SUPPLIES CORPORATION LTD.,A COMPANY OWNED AND
     CONTROLLED BY THE STATE OF KERALA, HAVING ITS REGISTERED OFFICE AT
     MAVELI BHAVAN, GANDHI NAGAR, KOCHI- 682020 AND REPRESENTED HEREIN BY
     ITS MANAGING DIRECTOR.

BY STANDING COUNSEL SMT.MOLLY JACOB FOR RESPONDENT NO.2

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the judgment dated 06.12.2022 in W.P.(C)
No.6686/2018 and direct the second respondent to continue to send samples
of the rejected items supplied by the appellant for examination by RAL
upon his request and to accept the stock if the report of the RAL is
positive, pending disposal of the above writ appeal.
     This Writ Appeal coming on for orders on 23/12/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:

                                                                   (P.T.O.)
           S.MANIKUMAR, C.J. & SHAJI P. CHALY, J.
          ----------------------------------
                     W.A.No.1970 of 2022
          ----------------------------------
          Dated this the 23rd day of December, 2022

                             ORDER

S.MANIKUMAR, C.J.

This writ appeal is filed by the appellant, who is a supplier

of spices and pulses to the second respondent - Kerala State

Civil Supplies Corporation Limited, being aggrieved by the

judgment dated 6.12.2022 in W.P.(C)No.6686/2018. Appellant

was the writ petitioner in the Writ Petition No.6686/2018

2. Writ petition was filed seeking the following reliefs:

"i. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent Corporation that in case of rejection of any of the items supplied by the petitioner, samples of the said item may be taken by the concerned QC in the presence of the petitioner, seal it and handover the same to the petitioner to send it to any of the NABL accredited laboratories in Kerala for a confirmation as to the quality of the item supplied and to accept and act upon the said report with a further direction to the Corporation to treat the rejection made by the concerned QC as illegal in cases where the report from the laboratory is in favour of the petitioner.

ii. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent Corporation to initiate stringent departmental actions including removal from the duty against the QC effecting illegal rejection based on the report of the NABL accredited laboratory with a further direction that in such cases the cost for testing charged by the laboratory shall also be mulcted on the concerned QC. W.A.No.1970 of 2022 :: 2 ::

iii. To issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent Corporation to direct its QCs in all depots to desist from rejecting the load without unloading."

3. After considering the rival submissions, the

procedure for inspection of stock prescribed under Clause

9.a of the tender conditions dated 22.1.2018, provisions in

the Supplyco Quality Manual and also taking note of the

decision of the Hon'ble Supreme Court in Joshy

Technologies International Inc. v. Union of India reported in

(2015) 7 SCC 728), writ court dismissed W.P.

(C)No.6686/2018 vide judgment dated 6.12.2022, relevant

portion of which reads thus:

"8. The petitioner has a contention that, whenever an article supplied by him is rejected, the sample should be collected in his presence and sent for analysis. As noted above, the Supplyco can reject articles even for reasons other than failure to meet the FSSAI standards. The Regional Analytical Laboratories are not equipped only for analysing whether the article satisfies the quality specifications in the FSSAI Regulations.

Therefore, if an article is rejected for failure to satisfy the Supplyco specifications like size, colour and smell, no purpose will be achieved by the sample being sent for analysis to the Regional Analytical Laboratory. In cases where the article is rejected for not meeting the FSSAI standards, the appeal committee is empowered W.A.No.1970 of 2022 :: 3 ::

to send article for analysis. In my considered opinion, the petitioner cannot refuse to avail the appellate remedy by alleging that the appellate committee members are inimical towards him. If at all any member of the appeal committee figures as accused in the complaint filed by the petitioner, such member can be substituted with another.

9. Having held so, I find merit in the petitioner's contention that rejection of articles at last moment will cause substantial loss to the supplier. This is an aspect which the Managing Director of the Supplyco is bound to address and take remedial measures. The other allegations raised by the petitioner are also matters which the Managing Director ought to consider. The petitioner cannot attribute malice to the present Managing Director or the Board of the Supplco merely for the reason that he had filed complaints against some officials at an earlier point of time. Therefore, despite the assertive submissions of the learned Counsel for the petitioner, I have no hesitation to hold that it is for the Managing Director of the Supplyco to consider the petitioner's grievance and take appropriate decision.

In the result, the writ petition is disposed of, permitting the petitioner to file a detailed representation before the Managing Director of the second respondent. If such representation is filed within one month, the same shall be considered and appropriate decision taken within two months.

Being aggrieved, instant writ appeal is filed.

4. Mr.S.Sreekumar, learned Senior Counsel made

submissions on the grounds raised. He also added that he

would file an appeal to the Appellate Committee in W.A.No.1970 of 2022 :: 4 ::

accordance with law. However, prayed that the writ appeal

be kept pending till disposal of the appeal to be filed.

Learned Senior Counsel has also raised apprehension with

respect to the members of the Appellate Committee.

5. In so far as the apprehension raised by the learned

Senior Counsel for the appellant as regards the members of

the Appellate Committee, eventhough they are not

impleaded as parties in the writ petition, we observe that