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Judgment
Ashok Bhushan, C.J.
This Writ Appeal has been filed against the judgment dated 25.06.2015 by which W.P.(C) No. 23931 of 2014 filed by the appellant
challenging the orders cancelling her ARD licence and order dismissing her appeal, has been dismissed.
Brief facts giving rise to this Writ Appeal are: Petitioner was a licensee of ARD No. 563 in Neyyattinkara Taluk, Thiruvananthapuram District.
Vigilance Officer, Commissionerate of Civil Supplies inspected the shop on 09.08.2012 and sent report regarding certain irregularities. The
Controller of Rationing issued a show cause notice dated 07.09.2012 to the petitioner asking her to show cause with regard to five charges
mentioned in the notice. By order dated 07.11.2012 the authorisation given to the petitioner was temporarily suspended. The Taluk Supply Officer
also sent reports to the Director of Civil Supplies. The memo of charges dated 29.05.2013 was issued in which apart from the allegations
mentioned in the show cause notice, several other charges were levelled against the petitioner including misappropriation of food grains. Petitioner
submitted a reply to the charges by letter dated 12.06.2013. The Commissioner of Civil Supplies, after considering the reply, by order dated
03.10.2013 cancelled the licence and directed for remittance of the amount of misappropriated ration goods in economic rate to the Government.
Petitioner filed an appeal against the said order before the State. Appeal of the petitioner was considered by the Government and by order dated
24.03.2014 dismissed the appeal. Challenging the aforesaid orders, Writ Petition was filed by the petitioner.
A counter affidavit on behalf of the second respondent has been filed in the Writ Petition supporting the charges levelled against the petitioner.
Allegation of misappropriation of food grains were sought to be justified by the counter affidavit including the orders passed against the petitioner.
Learned Single Judge after hearing the learned counsel for the petitioner and the learned Government Pleader, dismissed the Writ Petition.
Aggrieved by the said judgment this Writ Appeal has been filed.
Learned counsel for the appellant in support of the Writ Appeal raised the following submissions: Vigilance Officer after conducting the
inspection on 09.08.2012 has reported that 50 kgs raw rice was found in excess whereas the stock was not weighed by the Vigilance Officer and
only by counting of sacks he arrived at his conclusion which was incorrect. There was no excess in the stock and had the Vigilance Officer
conducted weighment of the stock, no excess would have been found. It is submitted that paragraph 7.01(2) of the Kerala Civil Supplies Manual,
1978 clearly required the inspecting officers to assess the stock by cent percent weighment. It is submitted that although on the basis of inspection
conducted on 09.08.2012, five charges were levelled, in the suspension order eight charges were levelled. In the charge memo apart from these
charges certain additional charges were levelled which was not justified. It is submitted that no mahazar was prepared. It is stated that certain
ration cards were seized by the Inspecting Officer. Preparation of mahazar was also required by the Manual while seizing ration goods or articles.
Explanation submitted by the petitioner has not been properly considered. Learned counsel also placed reliance on the judgment of the this Court
in Sarojini v. District Collector, Thiruvananthapuram (, 1999 KHC 3).
We have considered the submissions of the learned counsel for the appellant and perused the records.
Submission is that although after the inspection dated 09.08.2012 only five charges were mentioned in the show cause notice dated 07.09.2012,
in the charge memo dated 29.05.2013 several charges have been added which was not justified. It is true that after inspection by the Vigilance
Officer dated 09.08.2012 show cause notice mentioned only five charges but the charge memo included various other charges on account of
subsequent materials which was found against the petitioner. Charge memo dated 29.05.2013 referred to the following three references:
Ref: 1. Inspection Report dated 09.08.2012 of the Vigilance Officer.
Proceedings of the civil supplies director dated 7.11.2012.
Letters dated 20.02.2012, 04.05.2013 numbered B4-3180/12 of Taluk Supply Officer.
From the materials on record it appears that after the initial inspection by the Vigilance Officer on 09.08.2012 decision was taken to enquire
about the accounts of the ration shop from 01.09.2011 till the date of suspension of the licence and the report referred to in the charge memo of
the Taluk Supply Officer is the report based on the inspection of accounts.
Clause 45(8) of the Kerala Rationing Order, 1966 (for short, ""the 1966 Order"") empowers suspension or cancellation of authorisation and
realisation of an amount equivalent in value to the cost of the quantity of rationed articles found to be short or in excess and the cost of quantity of
article misappropriated. Clause 45(8) is as follows:
(8) If the District Collector or any Officer of the Civil Supplies Department (not below the rank of the Taluk Supply Officer finds that the
authorized retail distributor has contravened any of the provisions of this order or any of the directions issued there under or on receipt of the
report from any of the officers referred to in sub clause (7) or on his own inspection of the stocks and accounts in a shop finds any shortage or
excess in the quantity of rationed articles or any irregularities in the accounts or detects non-complaints with, any of the directions issued by the
competent authorities (or contravention of provisions of any order issued by a competent authority under section 3 of the Essential Commodities
Act, 1955 (Central Act 10 of 1955), which is for the time being enforced he may after giving the authorized retail distribution an opportunity of
stating his case and an opportunity of hearing him in person and for reasons to be recorded in writing, amend, vary, suspend or cancel his
appointment and/or order forfeiture of the whole or any part of the amount deposited by the authorized retail distributor as security under sub-
clause (5).
Notwithstanding anything contained in this sub-clause, he may order the realization of an amount equivalent in value to the cost of the quantity of
rationed articles found to be short or in excess and the cost of any quantity of rationed articles miss-appropriated by falsification of accounts and all
sums collected in excess by way of transport charges, handling charges, profit etc., and gained by the authorized retail distributor due to incorrect
fixation of price or any other defect in calculation when the mistake is subsequently detected at the time of inspection. If considered necessary he
may suspend the appointment of the authorized the appointment of the authorized retail distributor temporarily pending enquiry:
Provided that the power of cancellation of appointment shall be exercised only by an authority competent to make the appointment or a higher
authority"".
A Perusal of clause (8) indicate that action can be taken at any time when the District Collector or any Officer of the Civil Supplies Department not
below the rank of the Taluk Supply Officer finds that the authorized retail distributor has contravened any of the provisions of this order or any of
the directions issued there under or on receipt of the report from any of the officers referred to in sub clause (7). Sub-clause (7) is quoted as
below:
(7) Every authorized retail distributor shall give all reasonable facilities at all-time to the District Collector or any officer of the Civil supplies
Department not below the rank of a Rationing inspector or any audit officer attached to the Civil Supplies Department or the Commissioner of the
Corporation or Municipality or the Executive Officer of the Guruvayoor Township or the Executive Officer of the Panchayat as the case may be,
within whose jurisdiction the authorized retail depot is situated to inspect the stocks and/or accounts in the shop.
Thus the Vigilance Officer''s report as well as Taluk Supply Officer''s report referred to in the charge memo were all relevant materials on the basis
of which charges could have been imposed. The mere fact that show cause notice only mentioned five charges on the basis of the report of the
Vigilance Officer dated 09.08.2012 does not in any manner inhibit the authorities to include other charges which came into light on the basis of the
reports submitted by the competent authorities subsequent to the inspection. As noted above, decision was taken to verify all the accounts of the
petitioner from 01.09.2011 till date of suspension and the reports submitted by the Taluk Supply Officer referred as reference No. 3 in the charge
memo were the reports based on such examination of records of the licensee. Thus there was no error in including additional charges in the charge
memo which were based on relevant materials as per the 1966 Order. Thus submission of the learned counsel for the appellant that additional
charges were levelled which could not have been done cannot be accepted.
Learned counsel for the appellant has emphasised that at the time of inspection by the Vigilance Officer on 09.12.2012 no cent percent
weighment was made and only by counting the number of sacks which was not humanly possible, he has arrived at the conclusion that there was
excess of 50 bags. Learned counsel for the appellant in support of the above placed reliance on clause 7.01(2) of the Manual which is quoted
below:
The actual stock on hand at the time of inspection should be assessed by physical weighment. It is found that sometimes the inspecting officers
have assessed the stock in hand by weighing a few bags picked at random and working out the average. The weight of the total stock appears to
have been calculated in certain cases on the basis of the average weight. It is needless to say that the quantities calculated by above method cannot
be accepted under law if the dealer challenges the accuracy of the stock balance determined in the above manner. It is, therefore most essential
that the stock is assessed by cent per cent weighment. There is no other acceptable method.
Further learned counsel for the appellant relied on the Division Bench judgment in Sarojini v. District Collector, Thiruvananthapuram (supra) where
this Court held that when there was no physical weighment of entire stock by authorities, the allegation that there was deficiency in stock could not
have been justified. In the aforesaid judgment, petitioner was a licensee of a wholesale ration shop. Inspection was made on 01.11.1997 and
shortage of 241.89 quintals of fine boiled rice was detected and the licence was suspended. The Collector directed for recovery of cost of the rice
found short. Challenge to the same was dismissed by the learned Single Judge against which Writ Appeal was filed. From the facts stated in the
judgment it is clear that mahazar has been prepared based on average weight and it was on that basis the shortage has been round to the tune of
241.89 quintals. It was noticed that no stock was ascertained by physical measurement. Court has noticed one important fact that after suspension
of licence the stock was transferred to another wholesale dealer who reported that there was excess of 237 quintals of stock instead of shortage at
the time of inspection. In view of the above fact, this Court held that report of inspection on average cannot be accepted and that when the Manual
prescribes a particular method, that method has to be scrupulously followed. The following has been stated in paragraph 5 of the judgment:
The specific case set up by the Department is that at the time of inspection, there was a shortage of 241.89 quintals of Fine Boiled Rice in the
stock held by the appellant petitioner. However, we are of the opinion that the said shortage has not been fully established following the existing
instructions laid down in the Civil Supplies Manual. Even in Ext. P2 order passed by the District Collector, it is admitted that ""both in terms of
weighment and preparation of mahazar, the Controller of Rationing had not complied with the existing instructions laid down in the Civil Supplies
Manual"". The mahazar has been prepared based on average weight and it is on that basis the shortage has been round to the tune of 241.89
quintals of fine Boiled Rice in the Stock. Admittedly the Controller of Rationing has not caused a proper inspection of the depot by verifying the
stock kept in the depot and has not ascertained the stock by physical measurement. In this connection, it has to be noted that on suspension of
licence the stock was transferred to another wholesale dealer who reported that there is an excess of 237 quintals of the stock transferred to him
instead of shortages as noticed at the time of inspection. If that is the position, the allegation that there is deficiency of 241 quintals of rice cannot be
taken as correct and the shortage can only be of 4.89 quintals. According to the appellant petitioner, there is no deficiency of stock even to the
extent of the aforesaid 4.89 quintals. Admittedly, the Controller has not physically weighed the entire stock in which case, we are of the view that
the appellant petitioner cannot be made responsible for the irregularities noted against him. The District Collector having noted the aforesaid
irregularities in verification of stock was not correct in issuing Ext. P2 on the ground that at the time of inspection, the dealer has not registered her
protest. The fact that the appellant petitioner has not registered her protest is not sufficient to enter an adverse finding, resulting in civil consequence
to the dealer. The Department in such a case should support its case by valid materials gathered at the time of inspection and is not expected to
take any mileage out of the so called non registering of any protest by the appellant petitioner which is of no consequence in the face of the failure
on the part of the Controller of Rationing to comply with the existing instructions laid down in the civil supplies Manual in the matter of weighment
and preparation of mahazar. When the Manual prescribes a particular method, that method has to be scrupulously followed in pain of invalidation
of the order for breach thereof. He who takes the procedural sword shall perish with it is a hackneyed principle universally recognised. It is settled
that a decision which is illegal, irrational and unfair cannot be legally sustained. Viewed in the above backdrop the decision of the District Collector
evidenced by Ext. P2 in O.P. No. 6194 of 1998 as also Exts. P6 and P7 in O.P. 10181 of 1998 cannot be legally sustained. Accordingly, we are
of the view that the entire matter requires a fresh look at the hands of the District Collector, Trivandrum. We, therefore, set aside the judgment of
the learned single Judge and Ext. P2 in O.P. No. 6194 of 1998 as also Exts. P6 and P7 in O.P. No. 10181 of 1998 and as a sequel there will be
a direction to the District Collector, Trivandrum to pass fresh orders after affording an opportunity of being heard to the appellant petitioner either
in person or through counsel within four weeks from today in conformity with the observations contained in this judgment.
The above Division Bench judgment do support the submission raised by the learned counsel for the appellant that report regarding excess of
stock should have been made after physical verification. There is one more reason for proper physical verification at the time of inspection since
according to clause 45(8) an order for realisation of the amount equivalent to the value of ration articles found to be short or in excess can be
ordered. Thus report of excess or shortage has serious consequence. Thus had the action been taken only on the aforesaid charge we would not
have hesitated in setting aside the order. But a perusal of the charge memo indicated that more serious charges were levelled which were revealed
on the basis of the report of the Taluk Supply Officer referred to in reference No. 3 as noted above. The allegation of misappropriation of food
stuffs by using duplicate ration cards were levelled in the charge memo which were found proved. Statement of a card holder was also recorded in
the proceeding which was relied. The authorities have considered the explanation of the petitioner by relevant materials and had arrived at a finding
that misappropriation of food grains is proved which is recorded in the order itself. This Court in exercise of the jurisdiction under Article 226 of
the Constitution of India shall not reappraise the evidence on record or proceed to record finding of fact. An Order passed by an administrative
authority can be interfered under Article 226 only when the order is either not based on any relevant material or is perverse. Order passed by the
authorities cancelling the licence cannot be said to be based on no material whereas relevant materials for coming to the finding has been mentioned
in the charge memo which was found true after evaluation of the materials on record. That order in no manner can be said to be perverse.
Petitioner was also given personal hearing, petitioner''s husband along with an Advocate appeared and were heard. Learned Single Judge has also
considered all the submissions raised by the petitioner and did not find any infirmity in the findings recorded by the authority cancelling the licence.
The gravity of the charge of misappropriation of food grains have been noticed by the learned Single Judge while dismissing the Writ Petition. We
do not find any infirmity in the judgment of the learned Single Judge which may warrant interference in exercise of our appellate jurisdiction in this
Writ Appeal.
In view of the above, the Writ Appeal is dismissed.