WP/18392/2019 of Kum. P.Deepthi, Vs The State of Andhra Pradesh, on 31 December 2019

ORDER:

1. This writ petition under Article 226 of Constitution of India is filed, questioning proceedings in Ref.No.1(4)/1165/2019 dated 17.10.2019, passed by second respondent herein/Joint Collector (CS), YSR Kadapa District, declare the same as illegal, arbitrary and violative of principles of natural justice, consequently set aside the same.

2. The petitioner was appointed as Fair Price Shop dealer for shop No.1101021, Gandlur village, Kondapuram Mandal, YSR Kadapa District. Since the date of her appointment, petitioner is distributing essential commodities to card holders, allotted to shop without any remarks.

3. While matter stood thus, on 06.10.2019, second respondent suspended the authorization of petitioner, basing on the report of third respondent herein/Tahsildar, Kondapuram Mandal. As per the report of third respondent filed under Section 6-A of essential commodities Act, 1955 (for short E.C Act), order impugned in the writ petition is passed, suspending authorization of petitioner, is contrary to Clause 20 (i) of A.P State Targeted Public Distribution System (Control) Order, 2018 (for short Control Order, 2018), requested to set aside the same.

4. During hearing, the learned counsel for petitioner mainly highlighted, passing of an order in proceedings under Section 6-A of Essential Commodities Act, 1955 (for short E.C Act), without initiating 2 MSM, J

proceedings under Clause 20(i) of Control Order, 2018 and passing such an order of suspension in proceedings under Section 6-A of E.C Act is contrary to Circular Memo No.21/100/2015-AD.1 PP&CCS dated 28.09.2015, requested to set aside the same.

5. Whereas, learned Assistant Government Pleader for Civil Supplies contended that on the basis of report, besides initiation of proceedings under Section 6-A of E.C Act, disciplinary proceedings are also initiated, thereby the contention of petitioner that disciplinary proceedings are not initiated is without any basis, requested to dismiss the petition, in view of variation found by inspecting officer, which is beyond permissible limit under Clause 29 (a) of Control Order, 2018.

6. Since the learned counsel for petitioner Sri K. Srinivas, limited his submission that based on proceedings under Section 6-A of E.C Act, passing order of suspension, exercising power under Clause 8(4) of Control Order, 2018 is illegal, I would like to decide the issue, limiting my finding, only to the point urged before this Court.

7. It is no doubt true that in the reference of order dated 17.10.2019 in Ref.No.1(4)/1165/2019, the report of Tahsildar, Kondapuram Mandal is referred. At the same time in second para of order, there is a reference about initiation of disciplinary proceedings. The specific para is extracted hereunder for better appreciation:

“The proposals received in the reference read above, have been examined and it is felt that there is a prima facie case of contravention of Control Order, 2018 and therefore, the dealership of Kum.P. Deepthi, Fair Price Shop dealer for shop No.101021, Gandlur village, Kondapuram Mandal is hereby suspended pendingfinalization of disciplinary case as per Control Order, 2018with immediate effect”. is felt that there is a prima facie case of contravention of Control Order, 2018 and therefore, the dealership of Kum.P. Deepthi, Fair Price Shop dealer for shop No.101021, Gandlur village, Kondapuram Mandal is hereby suspended pendingfinalization of disciplinary case as per Control Order, 2018with immediate effect”.

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The purport of above para is that Tahsildar, Kondapuram sent report, both for initiation of proceedings under Section 6-A of E.C Act as well as initiation of disciplinary action against petitioner. The main contention of petitioner before this Court is that Tahsildar, Kondapuram has to sent a separate report for initiation of disciplinary proceedings and based on the report for initiation of proceedings under Section 6-A of E.C Act, disciplinary proceedings cannot be initiated. In view of specific contention, it is necessary to advert to Clause 20 (i) of Control Order, 2018 and the same is extracted hereunder:

“The inspecting authorities as and when found contravention of the provisions of this Order shall submit necessary inspection reports for initiation of disciplinary action under this Order. In case of seizure of scheduled commodities, for any violation or contravention of the provisions of this Order, a report of seizure shall be submitted to Collector/Joint Collectors, as the case may be, for initiating the action under Section 6-A(1) of the Essential Commodities Act, 1955. Simultaneously, a separate report shall be filed forinitiation of disciplinary proceedings against errant dealerunder the provisions of this Order and for violating the conditions and authorization”.

It appears from Clause 20(i) of Control Order, 2018, two separate reports are required to be submitted by inspecting officer for initiation of disciplinary proceedings and proceedings under Section 6-A of E.C Act. But as seen from material on record, more particularly, in the reference of impugned order, there is reference of report of Tahsildar, Kondapuram dated 06.10.2019. Thus the report submitted by Tahsildar, Prathipadu is only one i.e. for initiation of proceedings under Section 6-A of E.C Act, but no separate report is filed for initiation of disciplinary proceedings. However, second respondent, exercising power under Clause 8 (4) of Control Order, 2018, suspended the authorization of petitioner, based on report submitted by Tahsildar, Kondapuram for initiation of proceedings 4 MSM, J

under Section 6-A of E.C Act, though simultaneous recommendation is made in the same report for initiation of disciplinary action against Fair Price Shop dealer.

8. When Clause 20(i) of Control Order, 2018 specified that a separate report is required to be filed by inspecting officer for initiation of disciplinary action against petitioner, in the absence of any such separate report, as contemplated under Section 20(i) of Control Order, 2018, passing order based on report under Section 6-A of E.C Act is impermissible under law, since it is deviation from Clause 20(i) of Control Order, 2018. In the written instructions placed on record by learned Assistant Government Pleader for Civil Supplies, he submitted that Tahsildar, Kondapuram has also submitted another report under Clause 20(i) of Control Order, 2018, before Joint Collector (CS), Guntur District, requesting to initiate necessary disciplinary action against Fair Price Shop dealer for the irregularities committed by her in distribution of stock to card holders. But this fact was not reflected in the order impugned in the writ petition on the contrary, it indicates that based on report referred in the reference of order, the impugned order is passed. Copy of report is also not placed on record by learned Assistant Government Pleader for Civil Supplies to support his contention that a separate report is submitted as required under sub clause (i) of Clause 20 of Control Order, 2018. The order impugned in the writ petition refers only one report submitted by Tahsildar, Kondapuram. Respondents cannot substitute with another report in the place of earlier report, by submitting written instructions. The alleged second report under Clause 20(i) of Control 5 MSM, J

Order, 2018 is not referred in the order impugned in the writ petition. Therefore, it is difficult to accept the contention of learned Assistant Government Pleader for Civil Supplies that proceedings were initiated, based on another report submitted under Clause 20(i) of Control Order, 2018, as copy of it is not placed on record, except written instructions. Hence, I find that passing order, based on the report filed by Tahsildar, Kondapuram for initiation of proceedings under Section 6-A of E.C Act as well as initiation of disciplinary action against the petitioner, without filing a separate report as required under Clause 20(i) of Control Order, 2018 is a serious illegality and contrary to Control Order, 2018.

9. 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 require for confiscation or otherwise and no order of suspension/cancellation of authorization to be issued, based on report. In view of memo and requirement under Clause 20(i) of Control Order, 2018, 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.

10. In the result, the writ petition is allowed, setting aside proceedings in Ref.No.1(4)/1165/2019, dated 17.10.2019, passed by second respondent, suspending the authorization of petitioner, 6 MSM, J

declaring the same as illegal and contrary to Clause 20(i) of Control Order. There shall be no order as to costs.

11. Consequently, miscellaneous petitions, pending if any, shall stand closed.

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JUSTICE M. SATYANARAYANA MURTHY

Dated 31.12.2019 Rvk