@JUDGMENTTAG-ORDER
Nooty Ramamohana Rao
1. The writ petitioner is an authorized fair price shop dealer for shop No. 27 of Tagarakunta Village, Kanaganapalli Mandal, Anantapur District. His shop was inspected by the Deputy Tahsildar on 02.07.2011. A variation of 6.20 quintals of rice was found and hence, the Tahsildar, Kanaganapalli Mandal passed an order suspending the authorization of the writ petitioner in terms of the power available to him under Clause 5(7) of the Andhra Pradesh State Public Distribution System (Control) Order, 2008. The grievance of the writ petitioner is that, without either extending the period of suspension or getting the same confirmed by the disciplinary authority, namely the Revenue Divisional Officer, the writ petitioner is prevented from lifting and distributing the essential commodities after expiry of the 90 days period. The Andhra Pradesh State Public Distribution System (Control) Order, 2008 has been promulgated in exercise of the power available u/s 5 of the Essential Commodities Act, 1955. Clause 2(d) defines the expression "appointing authority" in the following terms:
Appointing Authority" means District Supply Officer (city) having jurisdiction over the area in respect of Hyderabad district, the District Supply Officer (city) having jurisdiction over the area in respect of Visakhapatnam city and the Revenue Divisional Officer or the Sub-Collector concerned in respect of the other districts.
Clause 2(x) defines the term "disciplinary authority" as
"disciplinary authority" means District Supply Officer having jurisdiction over the area in respect of Hyderabad District, the District Supply Officer (city) having jurisdiction over the area in respect of Visakhapatnam (city) and the Revenue Divisional Officer or the Sub-Collector concerned in respect of other districts and Assistant Supply Officers in Hyderabad, Visakhapatnam, Rajahmundry, Vijayawada, Tirupathi and Kurnool Municipal Corporations and Tahasildars in other areas.
Clause 5 deals with the procedure relating to imposition of a penalty against the fair price shop dealer. Sub-clauses (5) and (7) there of will be of significance for our enquiry. They read as under:
5(5): The appointing authority may, at any time, whether at the request of the authorized fair price shop dealer/nominated retailer/hawker or authorized 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 authorization issued or deemed to be issued to him under this clause.
5(7): notwithstanding anything contained in sub-clauses (4), (5) and (6) above, where a fair price shop dealer/nominated retailer/hawker has been convicted by a Court of law in spite of contravention of any order u/s 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955) relating to any of the commodities mentioned in the Schedule to this order, the appointing authority, shall, by order in writing, cancel his authorization:
Provided that such conviction is set aside in any appeal or revision, the appointing authority may, on application in Form-I made by the person whose authorization has been cancelled, reissue the authorization to such person:
Provided further that the disciplinary authority viz. Assistant Supply Officer/Tahsildar concerned shall also exercise the power of suspending the authorization of the erring F.P. Shop dealer and tagging on the cards to the nearest F.P. shop pending final action by the appointing authority, for a period of (90) ninety days only. Further, action of continuing the suspension beyond (90) ninety days or cancellation of authorization shall be taken by the "appointing authority" as well as the disciplinary authority viz. Revenue Divisional Officers/Sub-Collector/District Supply Officers.
2. The second proviso to sub-clause (7) empowers the Assistant Supply Officer or the Tahsildar, as the case may be, also to exercise the power of suspending the authorization of an erring fair price shop dealer and tagging on the cards to the nearest fair price shop dealer pending further action by the appointing authority for a period of 90 days. Thus, sub-clause (7) has put an embargo or a ceiling upon the exercise of power by the disciplinary authority. The disciplinary authority can suspend the authorization, upon being satisfied in the facts and circumstances of each case that such a measure is truly warranted to pass any such order for a period of 90 days. Therefore, if a disciplinary authority viz. Assistant Supply Officer/Tahsildar has passed an order, suspending the authorization, it must be construed as the one relating to the exercise of power available under the second proviso to Clause 5(7) of the 2008 Order. Under law, what is relevant is availability of a provision conferring power to be exercised by the agency. Either mis-quoting or wrong reference to the source of such power is absolutely irrelevant
3. But, at the same time, the suspension of the authorization of a fair price shop dealer ordered by the disciplinary authority cannot be continued beyond 90 days period. The further continuance of such suspension of the authorization of the fair price shop dealer can be resorted to by the appointing authority as well as the disciplinary authority, but however, when we read both halves of this proviso conjointly, though the later half used the words "as well as the disciplinary authority", it can easily be deciphered that the rule-making authority desired that the interim measure of suspension of the authorization of the fair price shop dealer beyond the first 90 days period should be confined and exercised only by the disciplinary authority. If the disciplinary authority were indeed thought of being conferred the power to place the authorization of a fair price shop dealer under suspension for a period beyond 90 days, the first part of the
4. Proviso could have been worded differently by usage of certain expressions, such as "at the first instance" or "initially". Though the 2nd half of the proviso uses the expression "as well as the disciplinary authority", a proper construction of the entire proviso leaves an unmistakable impression, in my mind, that power to suspend the dealer of a fair price shop for a tenure longer than 90 days can be exercised only by the appointing authority namely Revenue Divisional Officer/Sub-Collector/District Supply Officer. Perhaps, the rule-making authority has desired the disciplinary authority to apply his mind independently to the given facts and circumstances of the case. If the disciplinary authority were to construe that the nature of allegations or irregularities alleged against the fair price shop dealer do not really warrant the dealership to be suspended for a longer period than 90 days, they may not pass any such order at all. Only in the event that the disciplinary authority is satisfied that the facts and circumstances of the case and the nature and the gravity of the allegations or irregularities thrown against the fair price shop dealer warrant his authorization to be suspended, for a longer period than 90 days, then a specific order in that regard is needed to be passed by the appointing authority. Otherwise, if some of the disciplinary authorities are also conferred such power simultaneously with that of the appointing authority, then it might lead to incongruous if not absurd situations. In a given case, the disciplinary authority may be satisfied that the facts and circumstances of the case do not warrant the fair price shop dealer''s authorization to be suspended beyond 90 days period, but at the same time, if the appointing authority were also to similarly exercise the power, he might order for continuance or prolonging the period of suspension beyond the 90 days.
5. As was already noticed supra, in the hierarchal structure of governance, the appointing authorities are occupying the superior status than the disciplinary authorities. Therefore, as against the judgment of a superior authority, i.e. appointing authority, though the period of suspension need not be prolonged beyond 90 days, the judgment of the disciplinary authority to prolong it would be incongruous and does not fit into the principles of good governance. Therefore, the statute maker, in my opinion, has considered it appropriate to leave the entire matter for careful analysis and judgment of the appointing authority either to continue or not the period of suspension beyond 90 days. Therefore, the expression "as well as the disciplinary authority" found a mention in the later half of the 2nd proviso of Clause 5(7) of the 2008 Order. It is an expression without any meaning. It is no doubt true that no expression found in a rule can be construed as otiose or useless. But, if certain expressions are not fitting into the scheme, it is appropriate to put them in a manner that the rest of the provision becomes operational and functional.
6. In these set of circumstances, in the absence of any order passed by the appointing authority extending the period of suspension of the writ petitioner''s authorization beyond 90 days, a case is made out to allow him to lift and distribute the essential commodities. With this, the Writ Petition stands disposed of. No costs.
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It is a well-established principle in law that so long as the impugned power is traceable to the statute concerned, mere omission or error in reciting the correct provision of law does not denude the power of the authority from taking statutory action so long as its action is legitimately traceable to a statutory power governing such action. In such cases, this Court will always rely upon Section 114 III (c) of the Evidence Act to draw a statutory presumption that the official acts are regularly performed and if satisfied that the action in question is traceable to a statutory power, the Courts will uphold such State action. See
