Allowed

Smt. Nukala Sravanthi v. The State of Andhra Pradesh

Andhra Pradesh HC1 Dec 2021WP/20576/2019

Case brief

AI extract

What is this about?

This writ petition challenged the cancellation of the petitioner Fair Price Shop authorization which ignored natural justice. The court held the order illegal as the disciplinary authority failed to conduct a proper enquiry. The petition was allowed, and the cancellation set aside.

What did the court decide?

Impugned cancellation order set aside; liberty granted to disciplinary authority to conduct disciplinary action as per law.

Smt. Nukala Sravanthi Vs The State of… — Pension and Retirement Benefits | Andhra Pradesh HC (2021)

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HON’BLE SRI JUSTICE M. GANGA RAO

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WRIT PETITION No.20576 of 2019

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ORDER:

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This writ petition is filed seeking the following relief/s:

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“..to issue a Writ of Mandamus or any other appropriate Writ Order or direction, declaring the impugned proceedings Rc.No.871/2019-S1, dated 05.12.2019 on the file of the 2^nd respondent – Joint Collector, Guntur, as illegal, arbitrary and violative of principles of natural justice and pass such other orders…”

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Heard learned counsel for the petitioner and learned Assistant

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Government Pleader for Civil Supplies appearing for the respondents.

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The case of the petitioner is that she was appointed as a permanent fair price shop dealer for fair price shop no.074209A of Velpuru village by order dated 03.06.2014. Since then, she has been distributing essential commodities to the card holders without any complaint. As her authorization was valid upto 31.03.2019, she applied for renewal of the authorization duly paying the renewal fee of Rs.1,500/- on 25.02.2019. While the things stood thus, on 09.09.2019, the Civil Supplies Deputy Tahasildar, Chilakaluripet, inspected the fair price shop; as no irregularities were noticed, they went away. However, on 12.09.2019, a show-cause notice framing two baseless charges by the 3^rd respondent was served on the petitioner calling for the explanation of the petitioner. On the same day, the order of suspension dated 12.09.2019 was also served on the petitioner on the ground that certain variations were found at the time of inspection on 09.09.2019. Questioning the suspension the petitioner filed WP.No.14348 of 2019 and this Court by order dated 23.09.2019 suspended the suspension order giving liberty to the respondents to conduct enquiry. Pursuant to the said orders, the petitioner is being continued as fair price shop dealer. Thereafter, the 2^nd respondent issued notice to the petitioner directing

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her to appear for enquiry. Eventually, on 08.11.2019, the petitioner submitted explanation to the 2^nd respondent and the petitioner was asked to go away stating that she will be informed the next date of enquiry. But the petitioner has not received any notice. However, to the utter surprise the order dated 05.12.2019, whereby the petitioner’s fair price shop authorization was cancelled, was served on the petitioner. Aggrieved by the same, the writ petition is filed.

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Learned counsel for the petitioner submits that the impugned order is passed without conducting enquiry as per the provisions of clause 8(4) of the Andhra Pradesh State Targeted Public Distribution System (Control) Order, 2018 [for short, ‘Control Order’]. From the contents of the impugned order, it appears that Civil Supplies Deputy Tahasildar [‘CSDT], Gurazala, submitted an enquiry report on 23.11.2019 and based on the said report, the impugned order came to be passed. In-fact, the CSDT did not conduct any enquiry in the presence of the petitioner. Enquiry was conducted behind the back of the petitioner and without any notice to her. He has drawn the attention of this Court to clause 8(4) of the Control Order and submitted that it is mandatory on the part of the 2^nd respondent to conduct enquiry before cancelling the authorization and no such enquiry was conducted by the 2^nd respondent before passing the impugned order. Basing on the report of the CSDT alone, the impugned order has been passed. Even the said report is not served on the petitioner. As per clause 8(4) of the Control Order it is the 2^nd respondent who has to conduct enquiry. He has no power to delegate the power of conducting enquiry to a subordinate officer i.e., CSDT. Therefore, the impugned order, which suffers from legal infirmities and which is in violation of principles of natural justice, is liable to be set aside. In support of his contentions, he relied upon the

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decision of the erstwhile High Court of A.P in M. Kalyani v. District Collector, Prakasam District [2006(5) ALD 796(DB)] and the decision of the composite High Court in G. Durga Srinivasa Rao v. State of A.P and others [2015(6) ALD 359].

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Learned Assistant Government Pleader submits that on inspection, the inspecting authorities found huge variation in the stocks i.e., excess balance of 1006 Kgs of PDS rice. It is in violation of clause 10(f) of the Control Order. Therefore, suspension order along with show cause notice was issued. However, this Court suspended the said order giving liberty to the authorities to conduct fresh enquiry. Accordingly, another show cause notice was issued for which the petitioner submitted her explanation. Thereafter, the 2^nd respondent, being the disciplinary authority, asked clarification from the CSDT. The CSDT after conducting enquiry submitted a report. The CSDT being the inspecting authority under the provision of clause 20(a) of the Control Order has every authority to conduct enquiry and submit a report. Fair price shops in several villages would come within the jurisdiction of the 2^nd respondent, who is disciplinary authority, and it would be impossible for the 2^nd respondent to conduct enquiry himself before taking disciplinary action.

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Having considered the facts and circumstances of the case, submissions of the learned counsel and on perusal of the material record, this Court found that the 2^nd respondent, who is the disciplinary authority, has not conducted any enquiry after submission of the explanation by the petitioner to the show cause notice. He merely relied on the report submitted by the CSDT. In the counter also it is specifically averred that after the petitioner submitted written explanation, the same was sent to the CSDT for clarification. But the

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CSDT conducted denovo enquiry and submitted a report after examining card holders. The contention of learned Assistant Government Pleader that the CSDT has every authority to conduct enquiry and submit report and based on such report the disciplinary authority can pass orders merits no consideration in view of the decision in G. Durga Srinivasa Rao (supra) wherein this Court after referring and considering various clauses of the Control Order, held as follows: - ‘After receiving the explanation from the dealer, in case of denial by him, the appointing authority shall hold an enquiry and prove the charges leveled 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’. In the present case, admittedly, the appointing authority has not conducted enquiry by placing the material before the petitioner but merely basing on the report submitted by CSDT, copy of which is not even served on the petitioner, passed the impugned order cancelling the petitioner’s fair price shop authorization. Hence, the impugned order suffers from legal infirmities and is in violation of principles of natural justice. The Apex Court and this Court in catena of decisions had categorically held that when there is violation of principles of natural justice while passing an order in utter violation of the provisions of the Control Order without conducting any enquiry, writ petition is maintainable even though there is statutory appeal remedy available to the petitioner before the appellate authority. Therefore, the contention of learned Assistant Government Pleader that the writ petition is not maintainable as there is statutory appeal remedy is available to the petitioner cannot be countenanced.

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In view of the above discussion, the impugned cancellation order is liable to be set aside.

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Accordingly, the Writ Petition is allowed and the impugned cancellation order in Rc.No.871/2019-S1 dated 05.12.2019 is set aside. However, liberty is given to the 2^nd respondent/disciplinary authority to conduct disciplinary action against the petitioner as per law. There shall be no order as to costs.

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As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition shall stand closed.

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_______________ M. GANGA RAO, J

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01.12.2021 Vjl

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HON’BLE SRI JUSTICE M. GANGA RAO

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WRIT PETITION No.20576 of 2019

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