IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 18080 of 2011(H) ----------------------------------------- PETITIONER(S): ------------------------- SEBASTIAN.K.V, LICENSEE, KEROSENE WHOLESALE DEALER NO.4, KUTHIYATHODU, ALAPPUZHA DISTRICT. BY ADVS. SRI.THOMAS ABRAHAM, SMT.MERCIAMMA MATHEW, SRI.K.S.HARIDAS, SRI.V.RENJITH KUMAR. RESPONDENT(S): --------------------------- 1. CONTROLLER OF RATIONING, KERALA STATE, TRIVANDRUM - 695 033. 2. DEPUTY CONTROLLER OF RATIONING, SOUTHERN RANGE, KOLLAM - 691 013. 3. THE DISTRICT COLLECTOR, ALAPPUZHA DISTRICT, ALAPPUZHA - 688 001. 4. DISTRICT SUPPLY OFFICER, DISTRICT SUPPLY OFFICE, ALAPPUZHA - 688 001. 5. TALUK SUPPLY OFFICER, CHERTHALA TALUK, TALUK SUPPLY OFFICE, CHERTHALA - 688 524. R1 TO R5 BY SR.GOVERNMENT PLEADER SMT. M.J.RAJASREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18080/2011 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE MAHAZAR DTD. 8/03/2011 PREPARED BY THE 2ND RESPONDENT. P2: COPY OF THE ORDER DTD. 09/03/2011 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE MAHAZAR DTD. 10/03/2011 PREPARED BY THE 5TH RESPONDENT. P4: COPY OF THE APPEAL FILED UNDER CLAUSE 6(2) OF THE KERALA KEROSENE CONTROL ORDER 1968 AGAINST EXHIBIT P2 ORDER. P5: COPY OF THE JUDGMENT DTD. 3/-05/2011 IN WPC.NO.12962 OF 2011. P6: COPY OF THE ORDER NO.(CS)A5-10184/11 DTD. 31/05/2011 PASSED BY THE 1ST RESPONDENT. P7: COPY OF THE JUDGMENT DTD. 8/06/2011 IN WP(C) NO.15438 OF 2011. P8: COPY OF THE NOTICE DTD. 27/06/2011. P9: COPY OF THE COMMUNICATION DTD. 29/06/2011 ISSUED BY THE 3RD RESPONDENT. P10; COPY OF THE PETITION DTD. 2/07/2011 SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J .......................................... W.P.(C). 18080/2011 .......................................... Dated this the 31st day of August, 2011 JUDGMENT M/s Jyothi Oil Stores has been appointed as Kerosene Wholesale Dealer No.4 at Kuthiyathodu in Aleppy District and the petitioner is the Managing partner of the said firm. An inspection of their premises was conducted by the second respondent on 8.3.2011 and Ext.P1 mahazar was prepared. On 9.3.2011, the second respondent issued Ext.P2 order suspending the licence of the petitioner. Against Ext.P2, petitioner filed Ext.P4 appeal before the first respondent which was rejected by Ext.P6 order. That order was challenged before this Court in W.P.(C). 15438/2011 which was disposed of by Ext.P7 judgment setting aside Ext.P6 order and directing reconsideration of the appeal. Accordingly the first respondent issued Ext.P8, posting the appeal for hearing. 2. While so, the third respondent issued Ext.P9 memo of charges calling upon the petitioner to submit his explanation as to why the licence shall not be cancelled for the irregularities detailed in Ext.P9. On receipt of Ext.P9, petitioner submitted W.P.(C).18080/11 2 Ext.P10 explanation. Thereafter, this writ petition has been filed seeking mainly, to quash Ext.P9. 3. The contention of the learned counsel for the petitioner is mainly that during the pendency of Ext.P4 appeal, the respondents could not have issued Ext.P9 memo of charges and according to him, if his appeal is allowed, no further proceedings will survive to be completed. It is also his contention that the second respondent having initiated the proceedings suspending the license, the second respondent himself should have completed the proceedings and that the third respondent had no power to issue Ext.P9 memo of charges. 4. On behalf of the respondents, a statement has been filed where it is explained that the District Collector, being the appointing authority, is also an authority competent to initiate disciplinary action against the licensee and that in cases involving grave allegations, it has been the practice of the Department that the proceedings will be completed by the District Collector himself. W.P.(C).18080/11 3 5. I have considered the submissions made by the learned counsel on both sides. 6. Cancellation, suspension and modification of licence and appeals are provided in clause 6 of the Kerala Kerosene Control Order, 1968. This provision to the extent it is relevant reads thus:- 6. Cancellation, suspension and modification of licence and Appeals - (1) The Commissioner, District Collector or any other Officer authorized by the Commissioner may after giving the wholesale dealer an opportunity of stating his case and for reasons to be recorded in writing- (a) modify, suspend or cancel any licence granted under this Order either for any breach of the terms and conditions of the licence (or for contravention of the provisions of any order issued by a competent authority under Section 3 of the Essential Commodities Act (Act 10 of 1955) which is for the time being enforced) or for any other good and sufficient reason. [provided that where the licence is considered necessary to be suspended during the pendency W.P.(C).18080/11 4 or in contemplation of proceedings for cancellation of his licence, it shall not be necessary to give any such opportunity to the licensee for stating his case.] 7. Clause 6(1)(a) provides for modification, suspension and cancellation of licence for any breach committed by the licensee. The proviso authorizes that in cases where licence is considered necessary to be suspended during the pendency or in contemplation of proceedings for cancellation of licence, it shall not be necessary to give any notice as provided in clause 6(1) (a). In the case on hand, without issuing any notice, by Ext.P2 order issued by the second respondent the license of the petitioner was suspended in contemplation of proceedings for cancellation of licence. Therefore, Ext.P2 is an order issued in exercise of the power confirmed on the second respondent under the proviso to clause 6(1)(a) of the Kerosene Control Order. 8. As far as the contention of the petitioner that if Ext.P4 appeal is allowed, he will be exonerated and therefore no further proceedings will survive necessitating the issuance of Ext.P9 memo of charges, I must confess my inability to accept W.P.(C).18080/11 5 the said contention. This is for the reason that Ext.P4 appeal is filed against Ext.P2, which has been issued suspending the petitioner's licence in contemplation of proceedings for cancellation of his licence. Therefore even if the appeal is allowed, as optimistically contended by the petitioner, the result would be that suspension would stand revoked. However with such an order, the proceedings in contemplation or pending will not get erased. On the other hand, it is always open to the authority concerned to initiate proceedings for cancellation of license under clause 6(1)(a) by issuing notice and on conclusion thereof, to impose punishment of cancellation of lincence. In that view, there is nothing illegal in Ext.P9 issued by the District Collector. 9. As far as the contention of the learned counsel for the petitioner that, the second respondent having issued Ext.P2 order of suspension should have concluded the proceedings, is concerned, there again petitioner has no case that the District Collector is not a competent authority who could have issued memo of charges. If that be so, unless the Kerosene Control Order contains any provision providing that the authority who W.P.(C).18080/11 6 placed the licence under suspension should himself conclude the proceedings, there is no irregularity whatsoever if the proceedings are transferred to yet another authority, who is also an original authority in terms of clause 6(1) of the Kerosene Control Order. The statement filed also explains that it has always been the practice of the Department to transfer proceedings involving cases with grave allegations and that it is consistent with such practice that the proceedings against the petitioner were transferred to the District Collector. Petitioner has not shown any provision of the Kerosene Control Order or in the Essential Commodities Act under which the control order is issued, prohibiting transfer of proceedings from one original authority to another original authority. In that view of the matter, the second contention of the learned counsel for the petitioner also has to be rejected and I do so. In the result, I do not find any merit in the writ petition. It is accordingly dismissed. ANTONY DOMINIC, Judge mrcs