HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.8412 of 2008 Date : 07.09.2010 Between : Sri K. Vachya Nayak. …..Petitioner And The District Collector (Civil Supplies), R.R.District & others. …..Respondents HON'BLE SRI JUSTICE R. SUBHASH REDDY WRIT PETITION No.8412 of 2008 ORDER : In this writ petition, the petitioner has questioned the order passed by the 3rd respondent-Revenue Divisional Officer in Proceedings No.C/3788/2007, dated 8th October 2007, as confirmed by the appellate and revisional authorities by orders, dated 18.01.2008 and 24.03.2008 respectively. Petitioner is the authorized fair price shop dealer for distribution of essential commodities, appointed as such, under the provisions of the A.P. Public Distribution System (Control) Order, 2001, framed under the Essential Commodities Act, 1955. On the report submitted by the Deputy Tahsildar (Enforcement), Ibrahimpatnam, stating that the petitioner has committed certain irregularities by diverting 60 to 70 litres of kerosene oil meant for public distribution system on 19th August 2007, and also certain variations were noticed in maintenance of stocks during the inspection of fair price shop, proceedings were initiated by the primary authority i.e. the Revenue Divisional Officer, Ranga Reddy District (East), for cancelling the authorization granted to the petitioner. A show cause notice, dated 24th of August 2007, was issued in Lr.No.C/3788/07, framing the following two charges against the petitioner: “Charge 1: That the F.P. Shop dealer Sri Amboth Vachya of Amboth Tanda (Vg) of Manchal Mandal has diverted 60 to 70 litres of PDS kerosene into black market and thereby committed the irregularities and contravened the condition of Authorisation”. Charge 2: That the F.P. Shop dealer has failed to maintain true correct records such as stock and sales Registers etc and certain variations are noticed during inspection of the F.P. Shop by the Dy.Tahsildar, Enforcement and thereby violated the condition 4(I) and (II) of authorization issued to him”. Petitioner has filed his explanation, dated 05.09.2007, to the aforesaid charges, denying the allegation of diversion of kerosene oil into black market, and with regard to variations in stocks, it is stated that due to heavy rush on the aforesaid date, which was a Sunday, supplies were made without recording entries in the issue register, to avoid inconvenience to the cardholders. It is stated that he was to make entries afterwards in issue register. The primary authority, without recording any finding, merely stating that the explanation is not convincing, held that the charges are proved beyond doubt and cancelled the petitioner’s authorization. As against the same, the petitioner has preferred an appeal before the Joint Collector-cum-Additional District Magistrate, Ranga Reddy District, in Appeal Case No.A7/706/07. Curiously, the appellate authority, by recording a finding that there is evidence to show that the petitioner has diverted 25 to 67 quintals of PDS rice and 127 litres of PDS kerosene oil into black market, has confirmed the order of cancellation. Further, the matter was carried in revision before the District Collector. The District Collector, by further order, dated 24th of March 2008, has recorded a finding that the statements given by the petitioner at different stages were found contradictory, and thus, confirmed the order of cancellation. In this writ petition, it is submitted by Sri B.Lingaiah Yadav, learned counsel for petitioner that though two charges are levelled against the petitioner, there is no evidence at all in support of the said charges, so as to cancel the authorization granted to the petitioner. It is further submitted that the primary authority has not recorded any reason for cancellation, except recording a finding that the explanation of the petitioner is not convincing. It is further submitted that the appellate and revisional authorities have confirmed the order of cancellation, on the charges that were not at all framed against the petitioner. Although the writ petition is of 2008, no counter affidavit is filed, but it is submitted by the learned Government Pleader appearing for respondents, that when inspection was made, it was found that the records were not maintained correctly, and as the statements of the petitioner recorded at different times were contradictory to each other, the appellate and revisional authorities have confirmed the order of cancellation, as such, there are no grounds to interfere with the same. The order of cancellation is passed when A.P.Public Distribution System (Control) Order, 2001 was in force. Clause 5(4) of the said Control Order empowers the appointing authority to amend, vary, suspend or cancel the authorization issued, for reasons to be recorded in writing. Though two charges are framed against the petitioner, which are denied in the explanation filed by him on 05.09.2007, the appointing authority i.e. the Revenue Divisional Officer has not recorded even a single reason for cancelling the petitioner’s authorization. The order of the Revenue Divisional Officer, dated 08.10.2007, passed in Proceedings No.C/3788/2007, runs contrary to the provisions under Clause 5(4) of A.P.Public Distribution System (Control) Order, 2001. Coming to the orders of the appellate and revisional authorities, the appellate authority has confirmed the order of cancellation, by recording a finding that the petitioner has indulged in diversion of 25 to 67 quintals of PDS rice and 127 litres of kerosene oil to the black market. But, there are no charges as such, before the primary authority, and there is no allegation of diversion of PDS rice at all. Even with regard to diversion of 60 to 70 litres of kerosene oil, the petitioner has explained that he has distributed it to the cardholders without making entries in the registers in view of heavy rush on that particular day, which was Sunday, but inspite of the same, even the appellate authority has not recorded any finding with regard to the explanation offered by the petitioner on the charges framed against him. Further, the appellate and revisional authorities appeared to have confirmed the order of primary authority, mainly on the ground that the statements made by the petitioner from time to time, were contradictory to each other. Once the proceedings are initiated by issuing a show cause notice, it is obligatory on the part of respondents to consider the matter with reference to the allegations made in the show cause notice and the explanation offered by him. When the show cause notice itself is dated 24th of August 2007, the authorities ought not to have taken the statements stated to have been recorded by them on 19th of August 2007, so as to record a finding that the explanation of the petitioner, dated 5th of September 2007, is contradictory from his statements made on 19th of August 2007. The statement of the petitioner, dated 19th August 2007, is recorded by the 2nd respondent himself, on the date of inspection. When proceedings are initiated by issuing a show cause notice, respondents ought to have relied only on the explanation submitted by the petitioner on 5th of September 2007, but not on the statement stated to have been made by him on 19th August 2007 i.e. prior to the issuance of show cause notice. In any event, the appellate authority has grossly erred in confirming the order of cancellation, by recording the allegation of diversion of rice also, on which, there is no charge at all. Even the revisional authority has emphasized only on the PDS rice sales and the entries made in the registers, even though there was no charge or any allegation on distribution of rice, against the petitioner. Inspite of the specific allegations made in the affidavit filed in support of the writ petition, no counter affidavit is filed by the respondents to controvert the same. In that view of the matter, and further, in the absence of recording any valid reason for cancellation of the authorization of petitioner by the primary authority, which runs contrary to Clause 5(4) of the Control Order, 2001, and as the appellate and revisional authorities have confirmed the said order on the grounds, which are not the subject matter of the show cause notice, I deem it is a fit case to set aside the order of cancellation, as confirmed by the appellate and the revisional authorities. For the aforesaid reasons, the writ petition is allowed and the order of cancellation, dated 08.10.2007, passed by the 3rd respondent-Revenue Divisional Officer, as confirmed by the appellate and revisional authorities, is set aside, with a direction to the respondents to restore the authorization of the fair price shop to the petitioner within a period of four weeks from the date of receipt of this order. Writ petition is allowed with the directions referred above. No order as to costs. ______________________ R. SUBHASH REDDY, J 7th September 2010 ajr