* T H E H O N ' B L E S R I J U + W.P.No.22038 of 2007 % 0 6 - 1 2 - 2 0 0 7 # K.Ganna Reddy, S/o.K.Ramakrishna Reddy. . . P e t i t i o V s . $ The Government of Andhra Pradesh, Rep.by its Secretary, Agriculture & Co-op (Agril.mktg.I) Dept, A.P.Secretariat, Hyderabad, And others. . . R e s p o n < G I S T : > H E A D N O T E : ! C o u n s e l f o r p e t i t i o n e Sri B.Vijaysen Reddy ^ C o u n s e l f o r r e s p o n d e Government Pleader for Agriculture, Sri V.Venkataramana, and Sri V.V.Narayana Rao. ? C A S E S R E F E R R E D : - 1. 2003 (6) SCC 675 2. AIR 1985 SC 582 3. (1994) 6 SCC 332 4. (1999) 7 SCC 569 5. (2005) 7 SCC 627 6. (2007) 7 SCC 206 7. AIR 1967 SC 295 THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.22038 of 2007 Dated:06-12-2007 Between: K.Ganna Reddy, S/o.K.Ramakrishna Reddy. …Petitioner and The Government of Andhra Pradesh, Rep.by its Secretary, Agriculture & Co-op (Agril.mktg.I) Dept, A.P.Secretariat, Hyderabad, and others. …Respondents THE HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.22038 of 2007 ORDER: The petitioner, K.Ganna Reddy, filed the present Writ Petition praying for issuance of writ of certiorari to call for records pertaining to G.O.Rt.No.1284, dated 08.10.2007, issued by the first respondent, to set aside the same and pass such other suitable orders. 2. Though it is specified as 08.10.2007 in the relief prayed for in the Writ Petition, G.O.Rt.No.1284 appears to be dated 06.10.2007, by Agriculture & Cooperation (Agrl.Mktg.I) Department. The impugned order had referred to allegations 1, 2, 3 and 17 and the said allegations are hereunder: “Allegation No.1: It was alleged in the petition that (15) licenses were suspended and revoked. Allegation No.2: The allegation is that during the month of April, 2006, one licenses Sri Oruganti Rama Murthy & Bonagiri Venkateshwarlu, Commission Agents were suspended and were Revoked within (10) days without the Resolution of the Market Committee for having excessively Weighed Red gram in their Adthis. Allegation No.3: It is alleged that notices had been given to one Sri Immadi Chandrasekar, Commission Agent for having collected excess commission charges and other charges and shown difference of amounts in the bills of farmers but no action has been taken. Allegation No.17: It is alleged that the license of Nimmala Papa Rao, Commission Agent was suspended for payment of lesser amount of Rs.30/- against the rate quoted in the tender for the produce of a farmer on 08.12.2005 whereas the licence of Immadi Chandra Shekar, Commission Agent has been restored though he has shown a difference of Rs.10,000/-. The Chairman has allowed the Commission Agent to carry on the business by taking bribe.” 3. The relevant portion of the impugned order in paragraphs 5, 6 and 7 read as hereunder: “5. The petitioner has stated that all decisions under the above 4 allegations are made in pursuance of market committee resolutions. Every Director of the market committee who is a party to the resolution has to be fastened with equal liability if it is found that the actions of the market committee are illegal or contrary to rules. But by initiating action only against him, the authorities are acting with maladies and arbitrariness that in collective decisions, one person could not be fixed with liability, while leaving the others scot-free that action of the Department is discriminatory that all the decisions of the market committee were taken under the guidance of Secretary, Agricultural Market Committee their even assuming that there are any technical irregularities, it is the Secretary, Agricultural Market Committee, who should be held responsible as under rule 31(4) of A.P.Market Rules and it is the Secretary who has to advise the Chairman and committee members about the acts, rules and bye-laws. He further representation his imposition of minor penalty of levying fine or major penalty of cancellation of license, is the discretion of the market committee. Such decisions to revoke licenses have been taken collectively by the committee of Agricultural Market Committee and keeping in view of facts and circumstances involved in a every particular case of the concerned commission agent. He relied on judgment of Supreme Court reported in 1996 (6) SCC 514. 6. The Commissioner & Director of Agricultural Marketing, who was consulted in the matter has stated that licenses will be granted to those who are trading in notified Agricultural Produce, Livestock and products of livestock in the notified area under section 7(1) of A.P(AP&LS) Markets Act, 1966, that the Market Committee may be a resolution passed in a meeting or by circulation approved by majority consisting of not less than four of its members cancel or suspend the licenses granted to any Commission Agent or trader or any other person licensed under sub section (1) of section 7 of the Act, by satisfying the conditions laid down under Rule 52 of the A.P (AP&LS) Market Rules, 1969 and that is also a provision for appeal from the orders canceling and suspending the license under Rule 53 of the said Rules, on the orders of the Market Committee either on cancellation or suspension of license within a period of 90 days before the Director. He has further submitted that the contention raised by the CAMC, Suryapet that the Market Committee has got inherent power to revoke the suspension, is not correct since there is a separate provision under Rule 53, providing for appeal on the orders of cancellation or suspension of license and that there is a specific provision under Rule 53, the committee cannot take any action after suspension of license. He further stated on the contention raised by the CAMS, that if the explanation is accepted by the committee, the suspension period will not be continued or the suspension will be revoked that though, it is a fact that the Market Committee has taken a resolution for revocation of license, it is a circulation meeting conducted and not ratified in the subsequent meeting held and the CAMC, violated the Statutory Rules. 7. Government have examined the representation of the Chairman, Agricultural Market Committee, Suryapet, Nalgonda District in the light of the above report of the Commissioner & Director of Agricultural Marketing and observes that the Chairman, Agricultural Market Committee, Suryapet violated the statutory rules and as the Chief controlling authority and supervisory authority of the Agricultural Market Committee he cannot escape his responsibility by throwing the issue on others and there by he became unfit to continue in office. Accordingly Government in exercise of the power under section 5(5) of the A.P. (AP&LS) Market Act, 1966, hereby remove Sri Ganna Reddy, Chairman, Agricultural Market Committee, Suryapet, Nalgonda District from the post of Chairman, Agricultural Market Committee, Suryapet, Nalgonda District with immediate effect.” 4. No doubt, the issuance of the show cause notice, the reply and what had been specified in the reply, all these aspects also had been referred to in paragraphs 3 and 4 of the impugned order. 5. Counter affidavits of respondents 1 and 6 were filed and a common reply affidavit also had been filed. 6. Sri Vijaysen Reddy, learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition, the respective stands taken in the counter affidavits of respondents 1 and 6 as well, and the reply affidavit. Learned Counsel would maintain that the role of the sixth respondent being limited, sixth respondent cannot be permitted to advance certain contentions beyond his limited locus. Learned Counsel also would maintain that this is a case of collective decision and all the allegations relate to the suspension of licence and revocation of licence without any authority, and these decisions being collective decisions as per the provisions of the Andhra Pradesh (Agricultural Produce & Livestock) Markets Act, 1966 (hereinafter in short referred to as ‘the Act’ for the purpose of convenience) and also the Andhra Pradesh (Agricultural Produce & Livestock) Markets Rules, 1969 (hereinafter in short referred to as ‘the Rules’ for the purpose of convenience), the impugned action cannot be sustained. Learned Counsel also had taken this Court through the factual details and would maintain that this controversy arises because of the personal animosity which respondent No.6 is having towards the writ petitioner, being a rival personality belonging to the same political party aspiring for the same Office. Learned Counsel also made elaborate submissions on the expression “willful’ in Section 5(5) of the Act and also incidentally referred to Sections 6-A and 6-B of the Act. While further elaborating his submissions, the learned Counsel also pointed out to Rules 26, 27, 28, 52 and 53 of the Rules as well. Learned Counsel also had taken this Court through the relevant portion of the impugned order and would maintain that in the light of such vague allegations, it cannot be said that there was formation of any opinion whatsoever and since the provisions of the Act and the Rules do not contemplate any individual exercise of power in relation to such decisions the writ petitioner alone cannot be held responsible in relation to the impugned order, on the strength of such allegations that too in the light of the opinion formed on the strength of some other opinion it cannot be said that the Government had exercised the formation of opinion independently. Learned Counsel also explained the procedure which may have to be followed in this regard and further pointed out that the concerned Secretary is expected to guide as per Rule 34 of the Rules. Incidentally, the Counsel also pointed out to certain of the concepts of Service jurisprudence inclusive of the proportionate of punishment, and would maintain that at any rate, the impugned order is totally disproportionate to the allegations made even if the findings are to be taken to be in accordance with law. Learned Counsel also made certain submissions relating to Article 14 of the Constitution of India and explained the distinction between the nomination post and the pleasure post and the tenure post as well and further would maintain that this is not a case where presumption under Section 114 of the Indian Evidence Act, 1872, can be drawn. Learned Counsel placed strong reliance on several decisions to substantiate his submissions. 7. Learned Government Pleader for Agriculture would maintain that it is true that on the strength of the complaint made by respondent No.6 Enquiry Officer conducted an enquiry and though in the complaint several allegations were made, only certain allegations were proved. A report was forwarded to the Government and a show cause notice was issued, reply was considered and the procedure had been followed. The explanation is to the effect that the Committee has got inherent powers and hence, in the light of the defence taken and the assertion made it may have to be taken that the same is willful. It is nothing but abuse of position. Learned Government Pleader for Agriculture also had placed strong reliance on the language of Rule 28(1) of the Rules and would maintain that in the light of the said language, the petitioner cannot take such a defence that since it is a collective decision, he cannot be held responsible. Learned Government Pleader for Agriculture also had taken this Court through Section 5(5) of the Act and Rules 52 and 53 of the Rules apart from Rule 28(1) of the Rules in particular. After making elaborate submissions in the light of the stand taken in the counter affidavit, learned Government Pleader for Agriculture would contend that this is a writ of certiorari and it is not the case of the petitioner that the procedure was not followed or there is any flaw in the decision making process. In the absence of the same, the writ petition deserves a dismissal. 8. Sri V.V.Narayana Rao, learned Counsel representing respondents 4 and 5 adopted the submissions of the learned Government Pleader for Agriculture. 9. Sri V.Venkataramana, learned Counsel representing respondent No.6 would maintain that it may be true that the writ petitioner and the sixth respondent may be aspiring for the same Office. Learned Counsel submits that the power of appointment would imply the power of termination as well. No procedural irregularity or illegality as such had been pointed out. Even on applying the wednesbury principle it is not a fit case to be interfered with for the reason that the power to be exercised by the Government, being self regulatory, the opinion of the Government as reflected from the impugned order may have to be given due weight. The Government recorded its own reasons. Such reasons cannot be found fault, especially, for the reason that Section 5(5) of the Act is not regulated by any eligibility criteria whatsoever. The decisions in relation to the expression “willful” either under the Contempt of Courts Act or the Rent Control legislations cannot be made applicable to the facts of the present case, and the same standard cannot be applied. Further, the learned Counsel would maintain that there are no malafides averred against R1 to R5. While concluding, the learned Counsel would explain that in view of the limitations imposed on this Court while exercising certiorari jurisdiction, this writ petition is liable to be dismissed. Learned Counsel placed reliance on certain decisions. 10. Heard the learned Counsel and perused the records. 11. The relevant portions of the impugned order and the relief prayed for in the writ petition already had been specified above. The petitioner was appointed as Chairman of A.P.Agricultural Market Committee, Suryapet, on 18.11.2005 and since then he had been discharging his duties duly following the provisions of the Act and the Rules made there under. He submits that respondent No.6 is his political rival. The petitioner and the sixth respondent belong to congress party. Both of them were in fray for Chairmanship of Agricultural Market Committee (AMC), Suryapet. Despite several efforts, the sixth respondent was unsuccessful in getting himself appointed as Chairman AMC. Presently, the sixth respondent is President of Town Congress Committee, Suryapet. Boring grudge against the petitioner, the sixth respondent lodged a complaint on 04.10.2006 to the then Hon’ble Minister, Agricultural Marketing Committee leveling 14 allegations of irregularities against the petitioner. A copy of the complaint was forwarded to the second respondent and action was sought to be initiated against the petitioner for the alleged irregularities. The fifth respondent was appointed as enquiry officer by the second respondent pursuant to the complaint lodged by the sixth respondent. The fifth respondent conducted enquiry on 09.04.2007 and submitted his report to the first respondent. The petitioner was not issued any notice of enquiry report and hence the petitioner made a representation on 09.07.2007 to the official respondents for supplying copy of the complaint and for giving reasonable opportunity for his explanation. Since there was no response from them, the petitioner filed W.P.No.15623 of 2007 on 19.07.2007 before this Court, which was dismissed as withdrawn by order dated 24.07.2007 giving the petitioner liberty to work out remedy as and when cause of action accrues. 12. It is also averred that immediately after dismissal of W.P.No.15623 of 2007, the respondents issued the impugned notice dated 27.07.2007 calling upon the petitioner to submit explanation within 15 days as to why he should not be removed as Chairman, AMC, Suryapet. In the show cause notice, it is stated that enquiry was conducted by the third respondent on 21 allegations against the petitioner and in such enquiry, it was allegedly found that 4 allegations are proved. Along with the show cause notice, the enquiry report of the fifth respondent and copy of complaint lodged by the sixth respondent was also furnished to the petitioner. Until receipt of show cause notice and annexure, the petitioner did not have knowledge of contents of the complaint, as the petitioner was not served with copies of the same. As per the show cause notice, the allegations mentioned supra are held to be proved. 13. It is further averred that the petitioner filed W.P.No.16740 of 2007 challenging the show cause notice dated 27.07.2007 on various grounds. The writ petition was disposed of by an order dated 10.08.2007, giving the petitioner liberty to submit his explanation to the show cause notice and if any adverse order is passed, it was held by this Court that it should not come into force for a period of 10 days from the date of service of order. In pursuance of the order of this Court, the petitioner submitted his detailed explanation dated 18.08.2007 to all the four allegations leveled against him. Inter alia, the petitioner contended that, in all the cases of revocation of suspension of license, decisions were taken pursuant to resolution of the market committee. 14. It is also stated by the petitioner that in collective decisions liability cannot be fastened only on the petitioner, while leaving others scot free and that every Director of the market committee who is a party to the resolution has to be fixed with liability. The first respondent without considering his explanation in proper prospective passed the impugned order, which is purported to be on the report of the second respondent. It appears from paragraph 6 of the impugned order that the second respondent has opined that market committee does not have inherent power to revoke the suspension and that under Rule 53 of the Rules, there is a provision for appeal against the cancellation or suspension of licence. In his report, the second respondent has further pointed out that though revocation of licence is made pursuant to market committee resolution, such resolution is passed in a circulation meeting conducted and not ratified in the subsequent meeting and the petitioner violated the statutory rules. 15. It is also averred that with regard to the above four allegations all decisions taken for revocation of licenses of various commission agents, were in pursuance of resolutions passed by the Market Committee. In every case of revocation of license or levy of penalty, decision was taken only upon resolution of the Market Committee. The petitioner never took any individual decision as alleged by the fifth respondent in his enquiry report. In connection with allegation No.1, with regard to revocation of 15 licenses of commission agents, resolution was passed by the market committee on 28.11.2005. All the directors of the Market Committee duly signed the resolution which also contains the endorsement of the fourth respondent. So, it is clear that the fifth respondent without even properly verifying the records held that allegation No.1 is proved. 16. It is further stated that with regard to allegation No.2, the finding of the fifth respondent in his report is that, licenses of 2 commission agents M/s.Oruganti Ramamurthy and Bonagiri Venkateshwarlu were revoked by imposing penalty of Rs.500/- each and that the revocation is made through Market Committee resolution dated 06.04.2006. But, surprisingly, in the show cause notice dated 27.07.2007, it was mentioned that the licenses of these 2 commission agents were suspended and revoked without market committee resolution. 17. It is also averred that with regard to allegation No.3, the complaint is that no action was taken against one Immadi Chandrasekar, commission agent for having collected excess commission charges etc. The market committee by its resolution dated 16.01.2006 levied penalty on him by collecting Rs.968.58/- in addition to penalty of Rs.500/-. The decision to levy penalty was taken by the market committee resolution duly signed by all the Directors and endorsed by the fourth respondent. The decision to levy penalty only is a collective decision of the market committee and not by individual decision. The market committee having weighed pros and cons of the situation, have taken the decision to levy penalty. So, the finding of the fifth respondent that allegations against Immadi Chandrasekar are serious and that AMC should have prosecuted him is untenable and baseless. In every case of irregularity, it is not necessary to lodge a criminal complaint. In this case the licence was neither revoked nor suspended. So, the question of appeal being filed by the commission agent as pointed by the fifth respondent is totally baseless. The AMC having verified the accounts of Immadi Chandrasekar found that, he has collected excess charges of Rs.968.58/- from the farmers and the said amount was returned to the concerned farmers, in addition to levying fine of Rs.500/- as fine (badar) on the commission agent. Levy of penalty or prosecution is the discretion of the AMC. In every case prosecution is not necessary. So the opinion of the fifth respondent that AMC is not having power of appellate authority is totally extraneous to the fact situation. 18. It is further averred with regard to allegation No.17 the finding of the fifth respondent is that Nimmala Papa Rao was suspended for payment of lesser amount of Rs.30/- against the rate quoted in the tender, for the produce of a farmer on 08.07.2005. Whereas, the licence of commission agent Immadi Chandrasekar had been restored though he has shown a difference of Rs.10,000/-. The main allegation is that, the petitioner allowed the commission agent to carry on business by taking bribe of Rs.10,000/- and that the market committee vide resolution dated 16.01.2006 revoked the license of the commission agent, but the Chairman restored the license. The allegation is incorrect as, for the first irregularity penalty was levied against the commission agent as decided by the resolution of the market committee on 16.01.2006 duly signed by the Directors and endorsed by the fourth respondent. The allegation No.17 in the show cause notice is ambiguous and it is not known what is the nature of allegation. Moreover, the said allegation is not in tune with the enquiry report. 19. It is also further averred that the impugned order is beyond the scope of show cause notice. The impugned order is very vague and does not specify the statutory rules violated by the petitioner. Rule 52 of the Rules deals with the power of suspension and cancellation of licenses. Rule 52(2) of the Rules mandates, show cause notice issued to the licensee before his licence is cancelled or suspended. So, when reply is submitted by the licensee to the show cause notice issued by the AMC, if the AMC is satisfied with the reply, the AMC is bound to revoke the suspension. The provision of appeal under Rule 53 of the Rules can be availed by the aggrieved party, if cancellation order is passed or suspension order is continued being not satisfied with the reply to the show cause notice. So, it cannot be said that in every case of suspension, revocation has to be done by the appellate authority only. Under general law of interpretation of statutes, the power of suspension carried with it the inherent power to revoke the suspension. With regard to the other anomaly pointed out by the second respondent, regarding resolution made through circulation meeting and not ratified through subsequent meeting, it is submitted that such circular resolution was passed only in case of allegation No.1. The bye-law No.7 of A.P.Market Committee, empowers AMC to pass resolutions through circular meetings. Invoking such Rule, suspension of 8 licenses covered under allegation No.1 is revoked. It is the duty of the fourth respondent to enter such resolution in next meeting agenda, which is not done so. It is a lapse on the part of the fourth respondent and more so, technical in nature. Further the allegation regarding circular meeting was not mentioned in the show cause notice dated 27.07.2007. So, the impugned order in this regard is beyond the scope of show cause notice. 20. It is also stated that the Government on its