IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 2758 of 2007(C) -------------------------------------- PETITIONER(S): ------------------------ V.K.SUKUMARAN, PROPRIETOR, AGED 63, S/O.KOCHUKUNJU, CHEMPAZHANTHI, THIRUVANANTHAPURAM, RESIDING AT KARTHIKA, G.N.R.A. XL VII, KAZHAKOOTTAM, THIRUVANANTHAPURAM. BY ADV.MR.P.C.SASIDHARAN RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FOOD AND CIVIL SUPPLIES AND ANIMAL HUSBANDARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER FOR CIVIL SUPPLIES, OFFICE OF THE COMMISSIONER FOR CIVIL SUPPLIES, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 4. THE DISTRICT SUPPLY OFFICER, DISTRICT SUPPLY OFFICE, THIRUVANANTHAPURAM. R1 TO R4 BY GOVERNMENT PLEADER MR.V.TEKCHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2758/2007C APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER OF THE DISTRICT COLLECTOR IMPOSING A FINE OF RS.20,000/- DTD. 26/07/06. EXT.P2: COPY OF THE APPEAL PREFERRED BY THE PETITIONER DTD. 02/09/2006. EXT.P3: COPY OF THE COMMUNICATION DTD. 06/12/2006 OF THE 2ND RESPONDENT. EXT.P4: COPY OF THE APPEAL PREFERRED BEFORE THE GOVERNMENT BY THE PETITIONER DTD. 24/11/06. EXT.P5: COPY OF THE REPRESENTATION DTD. 04/12/06. EXT.P6: COPY OF THE COMMUNICATION DT. 08/01/2007 ISSUED BY THE DISTRICT SUPPLY OFFICER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 2758 of 2007 ====================== Dated, this the 24th day of March, 2009 J U D G M E N T The petitioner is aggrieved by Exhibit P1 order passed by the third respondent whereby a fine of Rs.20,000/- has been imposed on him in respect of the alleged irregularities in connection with the distribution and supply of LPG cylinders to the customers of the locality. The petitioner is also aggrieved by Exhibit P6 proceedings issued by the fourth respondent District Supply Officer, whereby the said respondent, who has no authority, has held that the appeal preferred before the Government against Exhibit P1 order is not liable to be entertained. 2. The case of the petitioner is that, pursuant to the complaint stated as received by the third respondent, a memo dated 19-12-2005 was issued to him, which led to Exhibit P1 order passed by the said respondent imposing a punishment of Rs.20,000/- on the petitioner, holding that W.P.(C) No. 2758/2007 -:2:- the irregularities and shortcomings were proved. It is also stated in Exhibit P1 order that such course was being pursued by the third respondent, in lieu of other appropriate steps for causing the licence to be cancelled by the BPCL who has given the 'agency' to the petitioner. 3. Aggrieved by Exhibit P1, the petitioner preferred Exhibit P2 appeal before the second respondent, who however, informed the petitioner as per Exhibit P3, that the appeal against the order passed by the District Collector under the Essential Commodities Act, 1955 had to be preferred before the Government. Pursuant to Exhibit P3 instructions, the petitioner preferred Exhibit P4 appeal before the Government. Quite surprisingly, the fourth respondent who is only a District Supply Officer and a person holding an office even much lower to that of the original authority i.e., District Collector, has issued Exhibit P6 stating that the contentions raised by the petitioner in the appeal preferred before the Government did not merit consideration at all. W.P.(C) No. 2758/2007 -:3:- 4. No counter affidavit has been filed by any of the respondents. Exhibit P1 order in this writ petition does not show under what provision or what authority, that the third respondent has passed the same. The learned counsel for the petitioner submits that the third respondent does not have any authority or competence to initiate the proceedings under the Essential Commodities Act, 1955 in the absence of any enabling provision. It is further pointed out by the learned counsel that the fourth respondent who is the District Supply Officer is having no jurisdiction or right to deal with the appeal preferred by the petitioner before the Government; challenging the order passed by the District Collector, particularly when the second respondent vide Exhibit P3 has conveyed that the appropriate authority to consider the appeal against the order passed by the third respondent/District Collector was none other than the first respondent/State Government. 5. There is considerable force in the submission made by the learned counsel for the petitioner. This is more W.P.(C) No. 2758/2007 -:4:- so, when the authority of the third respondent to pass an order of punishment as of the nature involved in the instant case is not brought to the notice of this court, with reference to the relevant provisions of law. Similarly, the fourth respondent who is only a lower level officer when compared to the respondents 1 to 3 had absolutely no jurisdiction or competence to consider the scope of the contentions raised by the petitioner in the appeal preferred before the Government, though he was only vested with the duty to implement the order passed by the third respondent imposing the punishment. Any how, since the matter is stated as pending consideration in the appeal preferred before the Government, it is for the Government to consider the appeal and to finalise the proceedings. Since no counter affidavit has been filed from the part of the respondents, it is found proper that the petitioner files a supplementary appeal in this regard before the Government within one month from today. W.P.(C) No. 2758/2007 -:5:- 6. In the above facts and circumstances, the first respondent is directed to consider the appeal already preferred by the petitioner as referred to in Exhibit P6 proceedings issued by the fourth respondent, along with supplementary appeal if any preferred by the petitioner within a period of one month from today and pass appropriate orders thereon after giving an opportunity of hearing to the petitioner/appellant as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this Judgment. It is made clear that the petitioner will be entitled to get refund of the amount - if any remitted pursuant to Exhibit P1 order, depending on the outcome of the Appeal. The writ petition is disposed of as above. Sd/- P.R.RAMACHANDRA MENON, JUDGE. skr // True copy // P.A. to Judge.