B. Santhosh Kumar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936** ## **WP(C).No. 22000 of 2009 (T)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **B.SANTHOSH KUMAR, LICENSEE, AWD NO.T-16, NANDIYODE, NEDUMANGAD THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO FOOD & CIVIL SUPPLIES (B)DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM.** **3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.** **4. THE DISTRICT SUPPLY OFFICER, THIRUVANANTHAPURAM.** **5. THE TALUK SUPPLY OFFICER, NEDUMANGAD, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI GIKKU JACOB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 22000 of 2009 (T)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE EXPLANATION DATED 12.06.2008 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.** **EXT.P2: COPY OF THE EXPLANATION DATED 01.07.2008 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **EXT.P3: COPY OF THE ORDER DATED 31.07.2008 OF THE 3RD RESPONDENT.** **EXT.P4: COPY OF THE APPEAL DATED 12.08.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P5: COPY OF THE ORDER DATED 16.10.2008 OF THE 2ND RESPONDENT.** **EXT.P6: COPY OF THE REVISION PETITION DATED 03.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXT.P7: COPY OF THE ORDER DATED 13.01.2003 OF THE 1ST RESPONDENT.** **EXT.P8: COPY OF THE ORDER DATED 23.01.2009 OF THE 1ST RESPONDENT.** **RESPONDENTS EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A TO JUDGE** **LSN** ## **P.V. ASHA, J.** ------------------------------------------------ ## W.P.(C) No. 22000 OF 2009 ----------------------------------------------Dated this the 20[th] day of September, 2014. ## **J U D G M E N T** Petitioner is the licensee of AWD No.T-18 in Nedumangad Taluk. An inspection team headed by 4[th] respondent visited the AWD of the petitioner on 12.06.2008. In the inspection it was detected that there was an excess of 22.63 quintal of APL boiled rice, shortage of 4.19 quintal in the stock of APL raw rice and shortage of 18.37 quintal in the stock of APL wheat. The inspecting team prepared a mahazar accordingly. 2. Immediately after the inspection, he submitted an explanation, which is produced as Ext.P1, before the District Supply Officer, Thiruvananthapuram, pointing out that actually there was no excess stock or shortage in the stock as alleged; the difference in quantity occurred only because average weighment was made, taking loads received later alone. According to petitioner, without considering his explanation, the 3[rd] respondent issued a memo of charges to him on 26-6-2008, based on the report of inspection, alleging violation of terms of agreement and of the 2 W.P.(C) No. 22000 OF 2009 instructions from the Department. Petitioner submitted his explanation as per Ext P2 on 1-7-2008 refuting the charges. The District Collector passed Ext.P3 order, after affording an opportunity of hearing to the petitioner. The District Collector did not accept the explanation of the petitioner and issued orders directing realisation of the price of the articles, to the extent of variation found in stock, apart from forfeiting the entire security deposit remitted by petitioner. 3. The petitioner submitted an appeal before the Civil Supplies Commissioner pointing out that weighment was not conducted in accordance with the procedure prescribed and that the impugned action against the petitioner was liable to be recalled. The Commissioner rejected his appeal as per Ext.P5 order dated 16.10.2008, affirming the order passed by the District Collector, saying that petitioner signed the stock statement prepared by the authorities. Petitioner filed a statutory revision petition before the Government under Clause 71 of the Kerala Rationing Order. After hearing the petitioner, the Government also rejected the revision petition, by Ext P8 order affirming the orders of the respondents 2 and 3, saying that Civil Supplies Manual contains only guidelines W.P.(C) No. 22000 OF 2009 3 for inspecting officers for inspecting ration shops and Civil Supplies authorities are following Kerala Rationing order. It was further held that no interference was required since the petitioner acknowledged the stock statement prepared by the authorities. 4. According to petitioner, he had produced another order issued by the Government in identical circumstances-Ext P7wherein Government took the view that procedure prescribed under Chapter VII para 7.01(2) and 7.01(5) of the Kerala Civil Supplies Manual, 1978, is mandatorily to be observed at the time of verification of stock and cent percent weighment has to be made of the entire stock. The contention of the petitioner before all the Statutory Authorities was that the respondents did not observe the procedure while verifying the stock and that in case such a procedure was adopted, there would not have been any variation. Petitioner submitted that he had produced the order Ext.P7 issued by Government on 13.01.2003, along with the revision petition. Thas order was passed in a review petition filed by a person, similarly situated, in the very same District, wherein also variation in stock was detected during the inspection conducted by the officials of the Civil Supplies Department. In that order, Government took the W.P.(C) No. 22000 OF 2009 4 view that a decision cannot be taken regarding the total quantity of rice/articles by taking average of a few non- standardised bags. In that case, the Government set aside identical proceedings against the petitioner therein. According to the petitioner, the District Collector himself had followed the Government Order issued on 13.01.2003 (Ext.P7) in another identical case i.e in Ext P9 order and absolved the ration dealer on the ground that weighment of the entire stock was not done in accordance with the provisions contained in Kerala Civil Supplies Manual, according to which actual stock on hand at the time of inspection should be assured by cent percent physical weighment and no other weighment is acceptable. The District Collector issued orders directing the Taluk Supply Officer, Nedumangad, to re-store the licence issued in favour of one Smt.Nagamma in respect of AWD No.27. Petitioner submits that it is in his case alone that Government took an indiffirent stand and refused to consider his contention with reference to the order Ext.P7 and penalized him. Petitioner therefore, seeks to quash Ext.P3, P5 and P8 orders. 5. The respondents have filed a counter affidavit in this writ petition. According to them shortage/surplusage of articles was W.P.(C) No. 22000 OF 2009 5 detected at the time of inspection conducted in the depot of the petitioner. The petitioner was present at the time of inspection and he put his signature in the mahazar. Therefore, it is stated that the petitioner has admitted the variation in the stock and he can not raise the contention regarding the weighment made. According to the respondents, they followed the procedure prescribed in the Kerala Rationing Order, 1966 and provision in the Kerala Civil Supplies Manual have no statutory force. It is also stated that the petitioner did not demand for weighment of entire stock at the time of inspection. The contention that petitioner put his signature in blank papers was also denied. 6. I heard the learned Counsel apearing for the petitioner and the learned Govt Pleader and considered the pleadings and rival contentions. 7. The impugned action against the petitioner is on the basis of the alleged variation found in stock in his depot, alleging that the same is contrary to the provisions in the agreemet with the department and contrary to instructions issued by the department. From Ext.P7 order, it can be seen that the Government themselves stated that the provisions under Kerala Civil Supplies Manual are to W.P.(C) No. 22000 OF 2009 6 be observed at the time of inspection and verification of stock. The provisions if any, which provide for a different procedure, in the Kerala Rationing Order or in any other rules is neither brought to my notice at the time of hearing nor stated in the counter affidavit. The orders impugned i.e Ext P3, P5 or P8 also do not refer to the procedure to be followed as per the Rationing Order, for verification of stock. As per the orders produced by the petitioner - Ext.P7 issued by Government on 13-1-2008 as well as Ext.P9 order dated 18-4-2009 of the District Collector, para 7.01(2) and (5) of the Civil Supplies Manual are to be followed in respect of verification of stock, accordiing to which there should be cent percent weigment of the entire stock in hand and there is no other acceptable method. The respondents do not have a case that they followed that procedure. Even in Ext P8 order Govt admits that the provisions in Civil Suplies Manual are guidelines to be followed by all the inspecting officers of the department, though according to them the authorities in the Department are following Kerala Rationing Order. The only contention is that the petitioner put his signature in the mahazar in approval of the verification. The case of the petitioner is that he put his signature in blank paper on direction by 4[th] respondent. In the W.P.(C) No. 22000 OF 2009 7 order Ext P7, Govt took the view that signature obtained, in a mahazar which is prepared without proper weighment is not valid. At any rate, there is no justification in penalising the petitioner on the ground of the signature, when admittedly, cent percent weigment of the entire stock, was not made by the respondents. Moreover, I find that the judgment of the Division Bench of this Court reported in **N.Sarojni v. District Collector, Thiruvananthapuram & Othrs, AIR 1999 KER 119,** which was rendered, while considering an identical case, held that the procedure prescribed in para 7.01(2) and (5) are to followed for verification of stock, also supports the case of the petitioner. In the above circumstances, I find that the proceedings initiated against the petitioner in Ext.P3 by the District Collector as affirmed in Ext.P5 and P8 orders of Commissioner of Civil Supplies and Government are liable to be set aside and hence I quash the same. Writ petition is allowed. There shall be no orders as to cost. **P.V. ASHA, Judge** lsn