@JUDGMENTTAG-ORDER
C.V. Nagarjuna Reddy, J.@mdashThis writ petition is filed for a mandamus to set aside the order in Rc. No. 82/2011/CSDT dated 01.03.2011 of the Respondent.
2. I have heard Sri N. Ranga Reddy, learned Counsel for the Petitioner and learned Assistant Government Pleader for Civil Supplies and perused the record.
3. The Petitioner is the fair price shop dealer of B. Yaleru Village. On the basis of an inspection conducted on 01.03.2011 by the Deputy Tahsildar, Civil Supplies, Atmakur, the Respondent has suspended the Petitioner''s fair price shop authorization. In his order, the Respondent has referred to as many as six charges, which include that the Petitioner failed to obtain release order from the Mandal Revenue Inspector for the month of February, 2011 and distribute PDS rice, sugar and paroling oil to the card holders. However, in support of his plea that the District Manager has issued the release order, the Petitioner has filed order dated 22.02.2011.
4. Before proceeding further with this case, it is relevant to note at this juncture that in recent times several instances are noticed by this Court where the Tahsildars have been exercising the power of suspension of the fair price shop dealers/licensees in violation of the provisions of the A.P. State Public Distribution System Control Order, 2008 (for short, "the Control Order"). In order to set things right, it is felt necessary to deal with these aspects with reference to the provisions of the Control Order. The Control Order is issued by the State of A.P. in exercise of its powers conferred by Section 3 of the Essential Commodities Act, 1955 and in terms of the Government of India''s order vide GSR No. 630(E), dated 31.08.2001 with a view to controlling and regulating the public distribution system in the State.
5. The Control Order prescribed separate appointing authorities for fair price shops and nominated retailers/hawkers. For the former category, the District Supply Officer for the Hyderabad District and Visakhapatnam city and the Revenue Divisional Officer or the Sub-Collector concerned in respect of other Districts are the appointing authorities and for the nominated retailers/hawkers, the Assistant Supply Officer for Hyderabad, Visakhapatnam and Vijayawada cities and the Tahsildar in respect of other Districts are the appointing authorities. Interestingly, Clause 2(x) included both the categories of appointing authorities under the definition "disciplinary authority". However, Clause 5 clearly demarcated the powers of the appointing authorities and disciplinary authorities. Under Sub-clause (5) of Clause 5, the power to add to, amend, vary, suspend or cancel the authorization issued to the fair price shops/nominated retailers/hawkers is exclusively vested in the respective appointing authorities. Under Sub-clause (6), the "disciplinary authority" is empowered to make alternative arrangement i.e., tagging on the house hold supply cards to the nearby fair price shop and also suspend the authorization and/or forfeit the security deposit partly or wholly. The second proviso to Clause 5 empowered the disciplinary authority, namely; Assistant Supply Officer/Tahsildar concerned to exercise the power of suspending authorization of the erring fair price shop dealers and tagging on the cards to the nearest fair price shop pending final action by the appointing authority for a period of 90 days only. It also envisages that further action of continuing the suspension beyond 90 days or cancellation of authorization shall be taken by the appointing-cum-disciplinary authority, namely; Revenue Divisional Officers/Sub-Collector/District Supply Officers.
6. A careful reading of these provisions would indicate that they are to some extent self-conflicting to the extent of power of the Assistant Supply Officers/Tahsildars in the matter of suspension. Sub-clause (10) of Clause 5 has categorized both the appointing authorities for fair price shops and nominated retailers/hawkers in the definition of disciplinary authority. Sub-clause (6) conferred on the disciplinary authority, which necessarily includes Assistant Supply Officers and Tahsildars with the power of suspension of authorization and/or forfeiture of the security deposit of the fair price shop dealers partly or wholly. But in the second proviso to Clause 5, it would appear that the power of suspension of authorization of a fair price shop dealer is conferred concurrently on both the District Supply Officers and Revenue Divisional Officers, who are the appointing authority for the fair price shop dealers and also on the Assistant Supply Officers and Tahsildars, who are the disciplinary authority. However, the second proviso to Clause 5 restricts the power of suspension of the Assistant Supply Officer/Tahsildar in case of fair price shop dealers only for a period of 90 days by empowering the appointing authorities to continue such order of suspension and reiterating their power of cancellation of authorization, as envisaged in Sub-clause (5) of Clause 5. This apparent conflict can only be resolved by reading down Sub-clause (6) of Clause 5 in consonance with the second proviso with regard to the power of the Assistant Supply Officers/Tahsildars to suspend the authorization of the fair price shop dealers. On such a reading, it is to be necessarily held that while in case of nominated retailers/hawkers, the Assistant Supply Officers/Tahsildars, who are both appointing and disciplinary authorities, have unlimited power of canceling the authorization (license) under Clause 5 and suspending them under Clause 6, in the case of fair price shop dealers such power of suspension is limited for a period of 90 days with no power vested in them to cancel the authorization, as it is only the appointing-cum-disciplinary authority, namely; the Revenue Divisional Officers/Sub-Collectors/District Supply Officers, who are vested with the power of suspension and also canceling the authorization.
7. Ordinarily, detection of illegalities in running of fair price shops by the dealers follows initiation of disciplinary action. As a first step, the Assistant Supply Officer/Tahsildar, being the disciplinary authority, shall apply its mind to the nature of the illegalities detected during the inspection. District Supply Officers/Revenue Divisional Officers, being the appointing and disciplinary authority, these illegalities shall be brought to their notice by the disciplinary authority. Thereupon the appointing authority is expected to apply his mind and commence enquiry. If the nature of the allegations warrants immediate suspension of the dealer, an order of suspension will be passed, pending enquiry into the charges. After such an enquiry, appropriate order imposing the penalty of either suspension or cancellation or exonerating the dealer will be passed by the disciplinary authority.
8. The State Government has by inserting the second proviso to Clause 5, has created a parallel authority, namely; disciplinary authority comprising the Assistant Supply Officers and Tahsildars, who, as noted above, were vested with the limited power of suspending the authorizations for a period not exceeding 90 days only, pending final action by the appointing authority. To my mind, in inserting this proviso, the State Government obviously felt the need of vesting the power of suspension in the Assistant Supply Officers/Tahsildars, who operated at the primary level in order to meet the exigencies of situation, namely; where the illegalities detected during the inspection of the fair price shops are such that they warrant immediate action against the dealer to ensure that he is kept away from distribution and that such a measure does not broke the delay that may occur in the appointing-cum-disciplinary authority taking action for suspension pending enquiry.
9. Thus, while exercising this limited power, the Assistant Supply Officers/Tahsildars need to keep in mind the fact that they exercise this power to meet the exigencies of situation pending further action by the appointing-cum-disciplinary authority. They further need to know that while they can exercise this power of suspension even before issuing a show cause notice and as the disciplinary authorities they may be vested with the power to frame charges, they shall, as soon as possible, report the matter to the appointing-cum-disciplinary authority by placing all the material including the charge memo and the explanation, if any submitted by the dealer to enable the appointing-cum-disciplinary authority to continue the further proceedings and pass a final order, after following the procedure envisaged in Clause 5(5) either by imposing the substantive penalty or exonerating the dealer depending upon the result of the enquiry.
10. The plenitude of the cases being filed before this Court shows that the Assistant Supply Officers/Tahsildars do not appear to have proper comprehension of their limited power of suspension and instead they are exercising the power of suspension in a routine manner arrogating to themselves the powers of the appointing-cum-disciplinary authorities. This Court has noticed one or the other following legal lacunae in the various orders passed by them:
i) The order of suspension is made without indicating the period for which it is made.
ii) Suspension is made after issuing show cause notice and calling for explanation.
iii) Conclusive findings are rendered on the delinquency of the dealers and more often than not even without reference to the contents of the explanation of the dealer.
iv) The order does not indicate that the same was passed pending enquiry and further action by the appointing-cum-disciplinary authority.
11. This Court feels it necessary to give the following directions to the Assistant Supply Officers/Tahsildars while dealing with the fair price shop dealers under the Control Order in order to ensure that the powers vested in them are exercised in conformity with the provisions of the Control Order:
1) They may exercise the power of suspension where the nature of illegalities detected warrants an immediate action and such action will not broke the delay that may take place in the appointing-cum-disciplinary authority passing an order of suspension.
2) It is desirable that they shall refrain from framing charges and calling for explanation in every case, unless the appointing-cum-disciplinary authority directs him to do so. Whenever an order of suspension is passed, the period for which such order is passed not exceeding 90 days shall be indicated therein besides specifying that the suspension is made pending further action by the appointing-cum-disciplinary authority.
3) The disciplinary authority shall place all the material before the appointing-cum-disciplinary authority as soon as possible without waiting for the outer limit of 90 days to enable the appointing-cum-disciplinary authority to initiate immediate action for holding enquiry and passing a final order as early as possible.
12. The Commissioner of Civil Supplies shall circulate this order to all the appointing and disciplinary authorities in the State with instructions to them to strictly follow the directions contained in this order.
13. Reverting back to this case, a perusal of the impugned order shows that time limit is not stipulated in the order. Moreover, suspension order was passed "pending disposal of the case" without reference to the enquiry to be conducted and final order to be passed by the appointing-cum-disciplinary authority, who is the Revenue Divisional Officer.
14. Therefore, impugned order dated 01.03.2011 is unsustainable and the same is accordingly quashed. Liberty is, however, given to the Respondent to send a report to the Revenue Divisional Officer on the basis of which the latter is left free to initiate proceedings against the Petitioner in accordance with the provisions of the control order.
15. Subject to the above directions, the Writ Petition is allowed.
16. As a sequel to disposal of the Writ Petition in the manner indicted above, WPMP No. 7279 of 2011 filed by the Petitioner for interim relief is disposed of as in fructuous.
