Punjab-Haryana High Court
M/S Nanak Oil Carrier vs Indian Oil Corp. & Anr on 12 September, 2014
Author: K. Kannan
Bench: K. Kannan
ARCHANA ARORA
CWP No. 19042 of 2014 1 2014.09.17 14:35
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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No. 19042 of 2014
Date of decision September 12 ,2014
M/s Nanak Oil Carrier
....... Petitioner
Versus
Indian Oil Corporation and another
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. R. S. Mamli, Advocate
for the petitioner.
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1. Whether reporters of local papers may be allowed to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the digest?
K. Kannan, J (oral).
1. The petitioner owns a fleet of transport vehicles and has a subsisting contract with the respondent corporation for transport of petroleum products. The terms of the contract have been brought through a transport agreement between the parties. One of the clauses in the agreement is as follows:-
"The carrier should strictly adhere to "Industry Transport Discipline Guidelines" as enumerated in Annexure-A to this agreement and to any amendment issued from time to time."
2. One of the vehicles of the petitioner's vehicle was found to have tampered with TT fittings by alleged cutting and modifying the TT security locking system. When this was detected a CWP No. 19042 of 2014 2 show cause notice was issued on 16.6.2014. The fact of breakage of the locking system was admitted and in a reply given by the petitioner it appears that the petitioner had stated that manipulation had been done by its driver without its knowledge. Subsequently in a reply given by the petitioner on 26.6.2014 it tried to give additional explanation that without eliciting full facts from the driver, it had instantaneously given a reply and even admission said to have been made by the driver immediately after the breakage was noticed was not genuine but the driver had signed in whatever paper that had been given to him without knowing the real implication. After issuing the show cause notice pointing out to the deliberate cutting and modifying of the security locking system and the admission made by the driver as well as by the petitioner, the corporation decided to blacklist the entire fleet of vehicles of the petitioners for a period of two years. The order passed on 15.7.2014 also gave a justification for the extreme decision taken that the petitioner who had originally admitted to the fault was trying to bring new facts and attempted to give false and misleading information which it perceived to be aggravating factor and the impugned order was passed.
3. Learned counsel for the petitioner states that the transport agreement was a complete bargain between the parties and there could be no additional penalties or alterations brought otherwise than through a bilateral process. The counsel would refer to a clause in the agreement that the agreement covers the entire understanding between the parties and notices and communications should be in writing by registered post. Relevant clauses on which CWP No. 19042 of 2014 3 the petitioner would place his reliance are extracted as under:-
18.This agreement covers entire understanding between the parties. No alteration variation of any of the terms of this agreement shall be valid unless made with the consent of both the parties and evidenced in writing duly signed by authorized representatives of both the parties.
19.All the notices and other communications to be given under this Agreement by either party to the other shall unless otherwise specifically agreed be given in writing by Registered Post or hand delivery against acknowledgment to the following addresses of the respective parties.
4. The counsel would also argue that in terms of the agreement the penalties that are provided are that for tampering with the standard fittings of TT including sealing or security locks. In the first detection of the irregularity, the TT would be blacklisted on industry basis. According to him, there had been no malpractice at any point of time during the entire contract period and the Corporation was attempting to invoke new guidelines providing for the blacklisting of entire TT only by resorting to the procedure and guidelines issued on 1.6.2014 to which the petitioner was not a party, and hence it was not binding.
5. There is at least no denial of the fact that the security locking system had been tampered with. The contention was that it could have caused a loss of about 5 liters and the CWP No. 19042 of 2014 4 tampering was admitted by the driver and also affirmed as the result of the driver's conduct as soon as the notice was issued to the petitioner. The additional explanation after the initial admission was that the driver was illiterate and he did not know what he was admitting and that their own reply was instantaneously given and did not have all the relevant facts when they made an admission that the driver had caused the tampering. The petitioner was surely bringing a whole new case, a fact which is so patent which if true would have been stated immediately and they are only trying to include a new version to find an excuse. The corporation was therefore justified in finding that they were trying to provide all the false and misleading information when a personal hearing was given in the enquiry in the notice to show cause against the blacklisting. There is no denial of the fact that tampering of the security locking is enumerated as one of the items of malpractice/irregularities. It is set forth in Section 8.2.1
(h) as follows:-
"Tampering with standard fittings of TT including the sealing, security locks, security locking system, calibration, Vehicle Mounted unit or its fittings/fixtures."
6. I have already observed that the standard fitting had been broken was an admitted fact at the time of inspection and detection. If we are rejecting a plea that the admission was on account of illiteracy of the driver and the petitioner's own admission was hastily done without knowing all the particulars, the only point that has to be seen is whether the corporation was justified in CWP No. 19042 of 2014 5 blacklisting all the TTs of the petitioner. Even in the original contract to which the petitioner was a party the tampering of the locking system contemplates the blacklisting of the industry. It cannot therefore complain that the blacklisting of the TTs was not within the power of the Corporation. Assuming for argument sake that blacklisting of industry did not mean blacklisting of all the TTs, it is specifically provided under the new guidelines which have taken effect from 1.6.2014. An argument that they were not parties to the new guidelines will have a meaning if it was introduced on their own volition without a provision for such incorporation of the penalties. On the other hand, in this case, I have already extracted at the outset the clauses found in the original agreement itself that the terms of the contract shall be applied with the guidelines which are issued from time to time. The guideline that is issued is not in my view, a whimsical one but it is to protect public property. The discipline which is sought is brought, if there is a deliberate act of tampering, then the punishment ought to be severe, commensurate with the mischief that is sought to be perpetrated. The guidelines which incorporated a punishment of blacklisting of all the TTs accords with the gravity of the deviance and I will not find that I can relieve the petitioner of the consequences of the wrong doing and I will find no reason for interfering with the order which is impugned in the writ petition.
7. The writ petition is dismissed.
(K. KANNAN) JUDGE September 12 ,2014 archana