Ramesh Vs. Prohibition and Excise Superintendent - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - she contends that the concluding portion of the order clearly discloses that the suspension was ordered as an interim measure and pending enquiry. its reference along with 'cancellation' clearly indicates the same.orderl. narasimha reddy, j.1. petitioner is a licensee under tft scheme and he is running a toddy shop at ekmal of basheerabad mandal, rangareddy district. on 23.9.2004, his shop was inspected by the excise sub-inspector and samples were drawn. the preliminary examination of the samples of toddy discloses that it was adulterated with chloral hydrate. a case in cor no. 233 of 2004-05 was registered under section 37(a) of the a.p. excise act, 1968 (for short 'the act'). through order dated 5.11.2004, the respondent suspended the licence of the petitioner. the same is challenged in this writ petition.2. sri vijay kumar heroor, learned counsel for the petitioner, submits that though the suspension is ordered pending enquiry, the respondent has recorded definite finding as to the involvement by the petitioner was violation of conditions and thereby the suspension deserves to be treated as a substantive punishment. he submits that such a measure can be resorted to only after issuance of notice, as contemplated under proviso to section 31(1) of the act. he places reliance upon the judgments of this court in sree devi wines v. the deputy commissioner of excise, kakinada, 1995 (1) ald 164 and sunil v. assistant commissioner of prohibition and excise/excise superintendent, twin cities of hyderabad, narayanaguda, 1997 (4) ald 625.3. learned government pleader, on the other hand, submits that the observation made in the impugned order is only tentative in nature and the question as to whether the petitioner had indulged in acts of adulteration can be decided after conducting an enquiry. she contends that the concluding portion of the order clearly discloses that the suspension was ordered as an interim measure and pending enquiry.4. through the impugned order, the respondent suspended the licence of the petitioner. the act or the rules made there under do not contain any independent provision dealing with the suspension pending enquiry. section 31 of the act empowers the licensing authority to suspend or cancel the licence, if the licensee is found to have violated the provisions of the act and rules and the conditions of the licence. the proviso to sub-section (1) of section 31 mandates that before the licence is cancelled or suspended, an opportunity of making representation shall be given to the licensee. suspension referred to in this proviso is invariably the one inflicted as a substantive punishment. its reference along with 'cancellation' clearly indicates the same.5. suspension, as a measure, pending enquiry has always been treated as incidental to the exercise of the power to grant licence. wherever the suspension is ordered, as a measure, pending enquiry, it is not required to be preceded by a notice. many a time it may prove to be a step defeating the very basis. if the allegation is that a licensee is indulging in the acts, which are injurious to health or hazardous to general public, permitting such a licensee to carry on such business even after noticing the irregularities may result in serious consequences.6. it is true that in the judgments relied upon by the learned counsel, this court held that if the findings are recorded as final in the orders of suspension, the same need to be treated as a substantive punishment. in this case, though an observation is made as to the complicity of the petitioner, and violation of the provisions of the act and conditions of licence, the fact that it is resorted to as a measure pending enquiry and in the public interest clears the doubt in this regard. to protect the interests of the petitioner, any observation made in the order as to the complicity of the petitioner can be treated as provisional, which, in turn, shall not have any bearing on the enquiry that would be conducted after issuance of the notice.7. hence, the writ petition is disposed of directing that the observation made in the impugned order that the petitioner has indulged in acts of adulteration shall not be treated as final and the question as to whether the petitioner has violated the conditions of licence or indulged in acts of adulteration shall be decided only after considering the explanation which the petitioner may submit in response to the show-cause notice.8. the impugned order shall be treated as the show-cause notice and it shall be open to the petitioner to submit his explanation within one week from today. the respondent shall pass final orders within four weeks from the date of receipt of the explanation. in case, such a final order is not passed, the suspension of licence shall stand kept in abeyance and it shall be open to the petitioner to carry on business, subject to the other conditions of licence. no order as to costs.

Judgment:
ORDER

L. Narasimha Reddy, J.

1. Petitioner is a licensee under TFT scheme and he is running a toddy shop at Ekmal of Basheerabad Mandal, Rangareddy District. On 23.9.2004, his shop was inspected by the Excise sub-Inspector and samples were drawn. The preliminary examination of the samples of toddy discloses that it was adulterated with Chloral Hydrate. A case in COR No. 233 of 2004-05 was registered Under Section 37(a) of the A.P. Excise Act, 1968 (for short 'the Act'). Through order dated 5.11.2004, the respondent suspended the licence of the petitioner. The same is challenged in this writ petition.

2. Sri Vijay Kumar Heroor, learned Counsel for the petitioner, submits that though the suspension is ordered pending enquiry, the respondent has recorded definite finding as to the involvement by the petitioner was violation of conditions and thereby the suspension deserves to be treated as a substantive punishment. He submits that such a measure can be resorted to only after issuance of notice, as contemplated under proviso to Section 31(1) of the Act. He places reliance upon the judgments of this Court in Sree Devi Wines v. The Deputy Commissioner of Excise, Kakinada, 1995 (1) ALD 164 and Sunil v. Assistant Commissioner of Prohibition and Excise/Excise Superintendent, Twin Cities of Hyderabad, Narayanaguda, 1997 (4) ALD 625.

3. Learned Government Pleader, on the other hand, submits that the observation made in the impugned order is only tentative in nature and the question as to whether the petitioner had indulged in acts of adulteration can be decided after conducting an enquiry. She contends that the concluding portion of the order clearly discloses that the suspension was ordered as an interim measure and pending enquiry.

4. Through the impugned order, the respondent suspended the licence of the petitioner. The Act or the Rules made there under do not contain any independent provision dealing with the suspension pending enquiry. Section 31 of the Act empowers the licensing authority to suspend or cancel the licence, if the licensee is found to have violated the provisions of the Act and Rules and the conditions of the licence. The proviso to Sub-section (1) of Section 31 mandates that before the licence is cancelled or suspended, an opportunity of making representation shall be given to the licensee. Suspension referred to in this proviso is invariably the one inflicted as a substantive punishment. Its reference along with 'cancellation' clearly indicates the same.

5. Suspension, as a measure, pending enquiry has always been treated as incidental to the exercise of the power to grant licence. Wherever the suspension is ordered, as a measure, pending enquiry, it is not required to be preceded by a notice. Many a time it may prove to be a step defeating the very basis. If the allegation is that a licensee is indulging in the acts, which are injurious to health or hazardous to general public, permitting such a licensee to carry on such business even after noticing the irregularities may result in serious consequences.

6. It is true that in the judgments relied upon by the learned Counsel, this Court held that if the findings are recorded as final in the orders of suspension, the same need to be treated as a substantive punishment. In this case, though an observation is made as to the complicity of the petitioner, and violation of the provisions of the Act and conditions of licence, the fact that it is resorted to as a measure pending enquiry and in the public interest clears the doubt in this regard. To protect the interests of the petitioner, any observation made in the order as to the complicity of the petitioner can be treated as provisional, which, in turn, shall not have any bearing on the enquiry that would be conducted after issuance of the notice.

7. Hence, the writ petition is disposed of directing that the observation made in the impugned order that the petitioner has indulged in acts of adulteration shall not be treated as final and the question as to whether the petitioner has violated the conditions of licence or indulged in acts of adulteration shall be decided only after considering the explanation which the petitioner may submit in response to the show-cause notice.

8. The impugned order shall be treated as the show-cause notice and it shall be open to the petitioner to submit his explanation within one week from today. The respondent shall pass final orders within four weeks from the date of receipt of the explanation. In case, such a final order is not passed, the suspension of licence shall stand kept in abeyance and it shall be open to the petitioner to carry on business, subject to the other conditions of licence. No order as to costs.