ORDER
1. Petitioner seeks a writ of certiorari or any other appropriate writ or order of direction calling for records pertaining to proceedings in D. Dis. No. 10149/90 dated 27-12-1990 issued by the 2nd respondent, and to quash the same as illegal, arbitrary and unconstitutional, and consequently to hold that the petitioner is entitled to continue as Fair Price shop dealer of Kollabayalu village, Madanapalle mandal of Chittoor district.
2. Petitioner is a Fair Price shop dealer of Kollabayalu village from 1972 onwards. It is stated that he has been discharging his duties as such to the utmost satisfaction of the villagers and that after the advent of the Telugu Desam party in the State of Andhra Pradesh, he has been associated with the said political party and is President of the village committee. It is also stated that some villagers, who are inimical to the petitioner, sent a petition against the petitioner alleging certain irregularities in the distribution of essential commodities to the card-holders. On the basis of the said complaint, the 2nd respondent issued to the petitioner show-cause notice No. G/5188/90 dated 16-4-1990, for which the petitioner submitted an explanation. It is further stated that though the petitioner had not committed any irregularities, the 2nd respondent, due to political pressures, had imposed a penalty of Rs. 1,000/- while restoring the dealership to the petitioner. Petitioner paid the penalty of Rs. 1,000/- and thereafter has been running the fair price shop. It is also stated that the villagers, who were responsible for lodging the complaint with the 2nd respondent, filed an appeal before the 1st respondent against the order of the 2nd respondent restoring the dealership while imposing the penalty of Rs. 1,000/-. The 1st respondent, without any reasons and due to political pressure, had remitted the matter back to the 2nd respondent for fresh disposal after conducting de novo enquiry. On remand, the 2nd respondent passed order in proceedings D. Dis. No. 10149/90 dated 27-12-1990, which was served on the petitioner on 28-12-1990, which is the order impugned in this writ petition. According to the order impugned, the 3rd respondent was directed to attach the cards attached to the fair price shop of the petitioner to the adjacent dealer while cancelling the dealership of the petitioner.
3. Sri P. S. Narayana, learned counsel for the petitioner, attacks the order impugned on various grounds. Firstly it is contended that the order impugned was passed in violation of principles of natural justice. Secondly, the 2nd respondent, while passing the order impugned has also taken into account ‘some other allegations’ though the petitioner was not given an opportunity to explain as to the fresh allegations made against him. Thirdly, the 1st respondent has no power to entertain the appeal filed by the third parties. Therefore, it is contended remitting the matter back by the 1st respondent for de novo enquiry and the order of the 2nd respondent, acting upon such direction of the 1st respondent, are without jurisdiction and that the entire proceedings are vitiated.
4. On behalf of respondents 1 to 3, the learned Government Pleader contended that when there is alternative remedy of statutory appeal available against the order impugned, the petitioner cannot invoke the jurisdiction of this Court under Article 226 of the Constitution of India; nonetheless the High Court is barred from entertaining the writ petition and that, therefore, the writ petition has to be dismissed on that ground alone. The other submission is that the impugned order is based on proper enquiry; that no principles of natural justice were violated and that, therefore, no indulgence could be shown to the petitioner.
4A. On behalf of respondent No. 4, Sri Niranjan Reddy contended that the appeal filed by the villagers before the 1st respondent was not questioned and, therefore, it is not open to the petitioner now to contend that the appellate authority, the 1st respondent, had no jurisdiction to entertain the appeal; even otherwise, the 2nd respondent has dealt the matter after sufficient enquiry and, therefore, the order impugned cannot be challenged in writ proceedings when alternative remedy is available.
5. On the basis of the rival contentions, the short question that falls for consideration is whether the writ petition is maintainable when alternative remedy is available ?
6. Sri Narayana, learned counsel for the petitioner, states that though alternative remedy is available by way of appeal before the 1st respondent, in the instant case no useful purpose would be served by filing the appeal, as the 2nd respondent passed the impugned order on the direction of the 1st respondent, who was not satisfied with the quantum of penalty. Therefore, it is argued when once the subordinate authority passes an order in a particular manner as directed by his superior authority, the person aggrieved by that order cannot take the matter in appeal before that superior authority, who is the appellate authority. It is stated that initially on a complaint filed by the villagers the 2nd respondent, while restoring the dealership to the petitioner, imposed a penalty of Rs. 1,000/-, which was duly paid by the petitioner. Aggrieved by that order, some villagers, who were inimical to the petitioner, carried the matter in appeal to the 1st respondent. The 1st respondent, without realising that appeal could not be maintained against the order passed by the 2nd respondent on the basis of third party complaints, remitted the matter back to the 2nd respondent by observing that the punishment of imposition of penalty is of lesser magnitude when compared to the allegations and, therefore, directed the 2nd respondent to impose maximum penalty. When this is the categorical direction by the 1st respondent, Sri Narayana contends, there is no use in carrying the matter in appeal before the same authority, who was instrumental in getting the impugned order passed. It is also submitted that the impugned order is based on ‘some other material’; that the petitioner had no notice of fresh material to explain and that, therefore, the petitioner had no other go than to approach this Court under Article 226 of the Constitution of India. In support of this contention, Sri Narayana has taken me through the decision of this Court in Srinivasan v. State of A.P., (1969) 1 Andh WR 374.
6A. The principle flown from the above decision is to the following effect :
“Person who hears appeal against the order of the petitioner and who is responsible for the initiation of disciplinary proceedings against the petitioner – Not a proper person to enquire into charges – Violates principles of natural justice.”
In the instant case, the 1st respondent, while remanding the matter to the 2nd respondent directed him to hold de novo enquiry and impose heavier punishment on the ground that the penalty of Rs. 1,000/- imposed was insufficient in the wake of the allegations made against the petitioner. On the basis of this direction only, the 2nd respondent cancelled the dealership of the petitioner. That being the situation, any appeal preferred to the 1st respondent against the order of the 2nd respondent would be violative of principles of natural justice.
7. Sri Narayana has also relied on the decisions of the Supreme Court in Kuntesh v. Management, H. K. Mahavidyalaya, Sitapur, and A. V. Venkateswaran v. R. S. Wadhwani, and contended that alternative remedy is not a bar for the High Court to interfere under Article 226 of the Constitution as distinguished by the Constitutional Bench in Venkateswaran’s case (supra). In Kuntesh’s case (supra), the High Court dismissed the writ petition on the ground that alternative remedy was available and, therefore, petition under Article 226 was not maintainable. In those circumstances, the Supreme Court observed (at p. 2189 of AIR) :
“….. it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition, when an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Art. 226 of the Constitution on the ground of existence of an alternative remedy.”
In Venkateswaran’s case, the Constitutional Bench was considering the power of the High Court to entertain writ petition under Art. 226 of the Constitution where alternative remedy was available to the parties aggrieved. The Supreme Court held;
“The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court.”
8. It is thus clear from the decisions of the Supreme Court that even though alternative remedy is available, writ petition can still be maintainable where (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the petitioner has been passed in violation or principles of natural justice.
9. In the instant case, admittedly, the 1st respondent, not satisfied with the penalty imposed by the 2nd respondent, remanded the matter to the 2nd respondent directing him to conduct enquiry de novo and impose heavy punishment, as, according to the 1st respondent, the punishment imposed was not proportionate to the complaints made against the petitioner. The 2nd respondent, by the impugned order, while cancelling the dealership, has also considered ‘some other’ aspects, which did not form part of the original allegations and the petitioner was not given an opportunity of being heard to explain those fresh allegations. Therefore, in my considered view, the petitioner can maintain writ petition under Article 226 of the Constitution, as is would fall within the two exceptions pointed out by the Supreme Court. Further, if the order impugned is allowed to stand, it would occasion a failure of justice and, therefore, it has necessarily to be set aside.
10. On the contrary, learned Government Pleader opposed the maintainability of the writ petition in the High Court. In support of this stand, the decision of a Division Bench of this Court in K. Gopral Rao v. Excise Superintendent, Adilabad, and of the Supreme Court in Asstt. Collector, C.E., Chandan Nagar v. Dunlop India Ltd., were cited. In view of the decision of the Constitutional Bench of the Supreme Court referred to above, I am afraid, the two decisions cited by the learned Government Pleader may not have much impact on the facts and circumstances of the case.
11. Having regard to the facts and circumstances of the case and in view of the decision of the Constitutional bench of the Supreme Court, there cannot be a second opinion as to the maintainability of the writ petition in circumstances of this nature and, therefore, I hold that writ petition is maintainable.
12. The question whether the 1st respondent had the power to entertain the appeal filed by the third parties cannot be gone into at this stage by this Court, as this Court is primarily concerned with the impugned order.
13. Since the primary grievance made out by the petitioner that the 2nd respondent has not given an opportunity to the petitioner to meet the additional grounds basing on which the impugned order was passed, I am of the view, the 2nd respondent could be directed to pass orders afresh after giving an opportunity to the petitioner of being heard on the other allegations, which were not part of the allegations found at the first instance.
14. Accordingly, the impugned order is set aside and the matter is remanded to the 2nd respondent to pass orders afresh on merits, after giving sufficient opportunity to the petitioner of being heard on the allegations which did not form part of the earlier allegations, without being influenced by the directions of the 1st respondent in the order or remand at the first instance. Till such order is passed, the petitioner shall not be disturbed from conducting his day-to-day functions as fair price shop dealer.
The writ petition is accordingly allowed. No order as to costs.
15. Petition allowed.