HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.32713 of 2011 Date : 26-11-2014 Between:
Smt. B. Manjula .. Petitioner And District Collector, Civil Supplies, Kurnool and others .. Respondents Counsel for petitioner : Sri K. Rajanna Counsel for respondents : Assistant Government Pleader for Civil Supplies (AP) The Court made the following
ORDER:
This Writ Petition is filed for a mandamus to set-aside order dated Nil-4-2011 of respondent No.3 and orders dated 3-8-2011 and 1-12-2011 of respondent Nos.2 and 1, passed in the appeal and revision, respectively.
The facts of the case lie in a very narrow compass. The petitioner’s fair price shop was inspected by the Tahsildar, Gonegandla Mandal. The charges framed based on the said inspection and the explanation offered thereto by the petitioner, as reflected in the impugned order, are as follows :
By order dated Nil-4-2011, respondent No.3 has cancelled the petitioner’s authorisation while not accepting the explanation of the petitioner. This order was confirmed in appeal and revision by respondent Nos.2 and 1, respectively.
I have heard Sri K. Rajanna, learned Counsel for the petitioner and the learned Assistant Government Pleader for Civil Supplies (AP).
The power of respondent No.3 to impose penalties on fair price shop dealers is derived from sub-clause (5) of Clause 5 of the A.P. State Public Distribution System (Control) Order 2008. The said provision reads as under :
“ The appointing authority may, at any time whether at the request of the authorised fair price shop dealer/nominated retailer/hawker or authorised establishment on suo motu after making such enquiry as may be deemed necessary and for reasons to be recorded in writing, add to, amend, vary, suspend or cancel the authorisation issued or deemed to be issued to him under this clause”. (Emphasis added) The Clause reproduced above enjoins on the appointing authority to follow two mandatory conditions before imposing any penalty as envisaged therein. The first, it shall make an ‘enquiry’ as deemed necessary; and the second, it shall record reasons in writing.
As per the Oxford Dictionary Thesaurus, Indian Edition-2007, meaning of the word ‘enquiry’ includes probe, examine, explore, delve into. The word ‘enquiry’ fell for judicial interpretation by the Apex Court in the context of service law jurisprudence. In State of
[1]
Uttaranchal Vs. Kharak Singh , the Supreme Court, inter alia, held that enquiries must be conducted bonafide and care must be taken to see that they do not become empty formalities.
[2]
In G.K. Doriaswamy Naidu Vs. State of A.P. this Court while considering Section 8 of the A.P. Civil Services (Disciplinary Proceedings) Tribunal Act, 1960 held that the word ‘enquiry’ covers the hearing of the proceedings i.e., recording evidence, admitting documents and generally complete the record upon which a finding would be based. This view was approved by the Apex Court in
[3]
Dr.M.N. Dasanna Vs. State of A.P. .
In Chandrama Tewari Vs. Union of India[4] the Supreme Court held that the disciplinary enquiry must be held in accordance with the rules in a just and fair manner and that the procedure at the enquiry must be consistent with the principles of natural justice; that the principles of natural justice require that a copy of the document, if any, relied upon against the party charged should be given to him and he should be afforded opportunity to cross- examine the witnesses and to produce his own witnesses in his defence; that if the findings are recorded against a Government servant placing reliance on a document which may not have been disclosed to him or the copy whereof may not have been supplied to him during the enquiry when demanded, that would contravene the principles of natural justice rendering the enquiry and the consequential order of punishment illegal and void.
In Kondamudi Banerjee Vs. Revenue Divisional Officer,
[5]
Ongole , I have held at paras 6 and 7 as under :
“Indubitably the order cancelling the privilege of distribution of essential commodities through a licence visits the holder of the licence with adverse consequences. Before subjecting the licensee to such an adverse order, it is obligatory on the part of the competent authority to apply his mind to the charges framed against and the explanation offered by the licensee. Failure to follow this fair procedure renders the very purpose of framing the charges and calling for explanation otiose. The principles of natural justice, it is trite, are embedded in the administrative law field. Whenever an action, which is likely to cause adverse civil consequences is sought to be taken, the person, who is likely to be affected by such action, is entitled to reasonable opportunity of defending himself (See : State of Orissa Vs. Dr. (Miss) Binapani Devi and others – AIR 1967 SC 1269, Menaka Gandhi Vs. Union of India – AIR 1978 SC 597, Swadeshi Cotton Mills Vs. Union of India – AIR 1981 S.C. 818 a n d Rajesh Kumar Vs. Deputy CIT – (2007) 2 SCC 181).
By failing to consider the explanation of the petitioner with reference to the charges framed against him, respondent No.1 has indulged in serious violation of principles of natural justice. Therefore, the impugned order cannot be sustained in law and is accordingly quashed. This order, however, does not preclude respondent No.1 from considering the petitioner’s explanation and passing a speaking order afresh with reference to the charges framed against the petitioner.”
This Court is conscious of the fact that the law discussed above was laid down by the Courts in the context of disciplinary proceedings against Government servants and it may not be possible to adhere to the same rigors of procedure in an enquiry against a fair price shop dealer. However, this Court is of the considered opinion that since an order of cancellation of fair price shop visits the dealer with adverse consequences, the appointing authority must adhere to the fundamental ingredients of an enquiry. The enquiry need not be too elaborate as in the case of a disciplinary proceeding against a Government servant, but it shall follow the basic requirement of an ‘enquiry’ which in my view must be as described infra.
An ‘enquiry’ pre-supposes an opportunity of personal hearing to the dealer to explain his/her case based on the records such as sales and stock registers. If need be, such ‘enquiry’ must also include recording the sworn statement of the dealer and witnesses, if any, from his/her side. In cases where either card holders or other persons sent any complaint, they must also be examined in the presence of the dealer or his/her lawyer and the dealer shall be given an opportunity of cross-examining such persons. The licencing /disciplinary authority shall also supply to the dealer all the reports on which he is likely to place reliance to the detriment of the dealer. Unless the dealer has no explanation at all to offer, the licensing/disciplinary authority is bound to hold a detailed enquiry.
The experience of this Court reveals that the appointing authorities of fair price shop dealers are dispensing with the requirement of making personal enquiry by summoning the dealers. They are merely relying upon the reports sent by their subordinates i.e., Deputy Tahsildars and Tahsildars, behind the back of the dealers and resting their decisions solely upon those reports. This procedure is anathema to the concept of ‘enquiry’ which otherwise means affording the dealer an opportunity of a fair hearing.
As regards the second mandatory requirement under sub- clause (5) of Clause 5, namely; reasons to be recorded in writing, reasons constitute the heart and soul of a decision. I n Madhya
[6]
Pradesh Industries Ltd. Vs. Union of India and others , the Supreme Court, while dealing with an order passed by the Central Government under Rule 55 of the A.P. Mineral Concession Rules 1960, emphasized on the need for giving reasons in support of the order. The Supreme Court inter alia held that the condition to give reasons introduces clarity and excludes or at any rate minimises arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory Court to keep the Tribunals within bounds.
I n G. Vallikumari Vs. Andhra Education Society and
[7]
others , the Supreme Court, at para-19, held:
“…The requirement of recording reasons by every quasi-judicial or even an administrative authority entrusted with the task of passing an order adversely affecting an individual and communication thereof to the affected person is one of the recognised facets of the rules of natural justice and violation thereof has the effect of vitiating the order passed by the authority concerned.”
In Secretary and Curator, Victoria Memorial Hall Vs. Howrah
[8]
Ganatantrik Nagrik Samity and others , the Supreme Court held at paras 40, 41 and 42, as under:
“It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. “The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.” (Vide State of Orissa v. Dhaniram Luhar (2004) 5 SCC 568 and State of Rajasthan v. Sohan Lal (2004) 5 SCC 573) Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. (Vide: Raj Kishore Jha v. State of Bihar (2003) 11 SCC 519, SCC p.527, para 19; Vishnu Dev Sharma v. State of U.P. (2008) 3 SCC 172; SAIL v. STO ((2008) 9 SCC 407, State of Uttaranchal v. Sunil Kumar Singh Negi (2008) 11 SCC 205, U.P. SRTC v. Jagdish Prasad Gupta (2009) 12 SCC 609, Ram Phal v. State of Haryana (2009) 3 SCC 258, Mohd. Yusuf v. Faji Mohammad (2009) 3 SCC 513 and State of H.P. v. Sada Ram (2009) 4 SCC 422).
Thus, it is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected.”
Unfortunately, a perusal of the impugned order shows that respondent No.3 has not even attempted to hold an enquiry and he has allowed himself to be swayed away by the report of the Tahsildar, Gonegandla without trying to test the veracity of the explanation offered by the petitioner. Unless the petitioner is given an opportunity of substantiating her explanation, it would be a grave travesty of justice to reject her explanation without holding an enquiry. As respondent No.3 has not followed this procedure, the impugned order cannot be sustained and the same is accordingly set-aside. The orders of respondent Nos.2 and 1, which confirmed the order of respondent No.3 are also set-aside. The fair price shop authorisation of the petitioner stands restored and she shall be permitted to function as the fair price shop dealer. This order, however, will not prevent respondent No.3 from holding a detailed enquiry in the light of the observations made hereinbefore and pass a fresh order.
Subject to the above observation, the Writ Petition is allowed. As a sequel to the disposal of the Writ Petition, WPMP No.40663 of 2011 is disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 26-11-2014 L.R. copies AM
[1] (2008) 8 SCC 236
[2] ILR 1967 A.P. 904
[3] (1973) 2 SCC 378
[4] 1987 (Supp) SCC 518
[5] 2011(2) ALD 477
[6] AIR 1966 S.C. 671
[7] (2010) 2 SCC 497
[8] (2010) 3 SCC 732