Allahabad High Court
Jai Baba Oil Carrier vs Indian Oil Corporation Ltd. And 3 Others on 19 July, 2013
Author: Rakesh Srivastava
Bench: Laxmi Kanta Mohapatra, Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED ON : 24.05.2013 DELIVERED ON :19.07.2013 RESERVED COURT NO.3 Case :- WRIT - C No. - 28071 of 2013 Petitioner :- Jai Baba Oil Carrier Respondent :- Indian Oil Corporation Ltd. And 3 Others Counsel for Petitioner :- Nitin Kumar Agrawal,Keshri Nath Tripathi Counsel for Respondent :- Prakash Padia Hon'ble Laxmi Kanta Mohapatra,J.
Hon'ble Rakesh Srivastava,J.
(Delivered by Hon.Rakesh Srivastava, J) Heard Sri Keshri Nath Tripathi, learned senior counsel assisted by Sri Nitin Kumar Agrawal Sri Prakash Padia, learned counsel for the respondents. Sri Prakash Padia has also placed before this court the relevant record of the case.
The Indian Oil Corporation Limited (Marketing Division) Uttar Pradesh, Noida invited tenders for road transportation of Bulk ATF products Ex-Mathura terminal. The bid of the petitioner was accepted and a letter of intent dated 14.6.2012 was issued to the petitioner by the respondents, and thereafter on 12.7.2012 the work order pertaining to 11 tanker trucks, mentioned in the said order for transportation of ATF Ex Mathura terminal was also issued to the petitioner. The work order is for a period of two years w.e.f. 12.7.2012 to 11.7.2014 with an option of extension of one year, in accordance with the terms and conditions mentioned in the said order.
The petitioner deposited the security money and started operating.
The petitioner has now been served with a letter dated 25.4.2013 in which it has been stated that in tanker truck no. UP 85 S 9228 and UP 86 9762 irregularities were detected as a result of which the contract of the petitioner and the 11 trucks covered by the said contract have been blacklisted for a period of two years w.e.f. 18.2.2013.
The petitioner has challenged the order dated 25.2.2013 primarily on the ground that no opportunity, whatsoever, was afforded to the petitioner before the impugned order was passed. In support of their case the petitioners have also relied upon a case reported in 2009(6) ALJ 236, M/s Kesarwani Transport Co., Jaunpur vs. Union of India & Ors.
Sri Prakash Padia learned counsel for the respondents, on the other hand, raised a preliminary objection regarding the maintainability of the writ petition. It was contended by the learned counsel for the respondents that in the agreement between the parties, there was an arbitration clause. Thus according to the respondents the present petition is liable to be dismissed for availability of alternative remedy.
We have considered the rival submissions made by the counsel for the parties.
A tanker truck no. UP 85S9228 was loaded with ATF on 5.2.2013 for AFS, Jaipur. It was detected that dip pipe of the chamber no.1 was freshly loaded at manhole cover, which according to the respondents was a proof of tampering with standard fittings of tanker truck. The Jaipur AFS sent the information to the respondent no.3.
On 7.2.2013 a show cause notice was issued to the petitioner by the respondent no.3 requiring the petitioner to place his version with respect to the allegation of tampering, mentioned in the said show cause notice.
In the show cause notice, it was specifically stated that the action of the petitioner was a clear violation of clause 8.2.2.5 of the Transport Discipline Guidelines (TDG), and action in accordance with the provision of Transport Discipline Guidelines (TDG) was warranted. The petitioner was required to submit his reply within the time mentioned in the said show cause notice. The petitioner in response to the said show cause notice submitted his reply on 11.2.2013 denying the charge levelled against the petitioner. The reply submitted by the petitioner to the show cause notice dated 7.2.2013 was found to be unsatisfactory.
On 12.2.2013 another letter was sent to the petitioner in which it was specifically stated that the reply submitted by the petitioner was not found satisfactory and action was liable to be taken as per Transport Discipline Guidelines (TDG) - 2009. It was further stated that before any action was taken, the petitioner was being given an opportunity of personal hearing. Accordingly, the petitioner was required to appear before the Committee on 19.2.2013 at 1130 hours. According to the respondents, the petitioner did not appear before the Committee, in pursuance of the letter dated 12.2.2013.
On 18.2.2013 tanker truck no. UP 86 9762 belonging to the petitioner reported for ATF loading. When locks of the tanker truck were being opened, it was observed that steel strip above locking socket was cut which was joint with m-seal. According to the respondents, the cut was proof of tampering with locking system of tanker truck.
A show cause notice was issued to the petitioner on 20.2.2013 by the respondent no.3, requiring the petitioner to show cause as to why action be not taken against the petitioner for tampering with the locking system of the truck. In this notice too, it was specifically stated that the action of the petitioner was in clear violation of clause 8.2.2.5 of the Transport Discipline Guidelines (TDG), and action in accordance with the provisions of Transport Discipline Guidelines (TDG) was warranted. The petitioner was required to submit his reply within the time, mentioned in the said show cause notice. The petitioner submitted his reply on 25.2.2013 denying the charge levelled against him in the show cause notice dated 20.2.2013.
The reply submitted by the petitioner to the show cause notice dated 20.2.2013 was found to be unsatisfactory and as a result of another letter dated 27.2.2013 was served upon the petitioner, requiring the petitioner to appear before the Committee on 8.3.2013 at 1130 hours for personal hearing. According to the respondents, the petitioner did not appear before the Committee, in pursuance of the letter dated 27.2.2013.
In fact another letter dated 19.3.2013 was sent to the petitioner in which it was stated that despite opportunity, the petitioner did not avail the opportunity of personal hearing and as such further action was being taken as per the Transport Discipline Guidelines (TDG) - 2009.
From a perusal of the documents placed before this court by Shri Prakash Padia it transpires that a Committee of three officers comprising Sri R.K. Ratanpal, Manager (RC), MMT, Sri Dipanjan Barai, AM (RC), MMT and Sri Indeevar Abhiram Yadav, AM (RC), MMT was constituted for recommending action to be taken in the matter.
The said Committee submitted its report and confirmed tampering with standard fittings of tanker truck, and recommended action as per the Transport Discipline Guidelines (TDG).
After taking into the consideration, the entire facts and circumstances of the case, the General Manager of the Corporation passed an order on 4.4.2013, by means of which 11 truck tankers of the petitioner along with its crew were blacklisted for a period of two years w.e.f. 18.2.2013.
The learned counsel for the respondents while controverting the averment made by the petitioner that the order of blacklisting was passed without affording any opportunity to the petitioner has brought to the notice of this court clause 8.2.2.5 of Transport Discipline Guidelines (TDG).
The relevant portion of clause 8.2.2 of Transport Discipline Guidelines (TDG) is as follows :-
"8.2.2. Penalties upon detection of malpractice/ irregularities :
The carrier shall attract penalties for the malpractice/ irregularities as given below and the TT mentioned in the following instances shall be suspended/blacklisted along with TT crew. However, an investigation shall be conducted and if the malpractice/ irregularity is established then penal actions stipulated as under shall be taken. Type of malpractice/ irregularity S. No. Number of malpractice/irregularity First Second Third Fourth 8.2.2.5Pilferage of product, TT not reaching destination, Fatal accident resulting in death at the work place, TT shall be blacklisted on Industry basis Clause 8.2.2.5 of the Transport Discipline Guidelines thus provides that the carrier could be blacklisted in case it was established that it had indulged in any malpractice / irregularity mentioned in the said clause. The petitioner was well aware of the said clause.
As already mentioned above, in the two show cause notices dated 7.2.2013 and 20.2.2013 issued to the petitioner with respect to the two tanker trucks, mentioned above, it was specifically stated that the act of tampering mentioned in the said show cause notices was in violation of clause 8.2.2.5 of the Transport Discipline Guidelines (TDG) and action was warranted under the said guidelines. The petitioner was required to submit his reply to the charge of tampering. The petitioner was fully aware that in case, the charge of tampering was established, the transport truck along with crew could be blacklisted. In the circumstances, it cannot be said that the order of blacklisting was passed by the respondents without affording any opportunity to the petitioner, as alleged by the learned counsel for the petitioner.
The petitioner was not only given a show cause notice but was also afforded an opportunity of personal hearing. It is another matter that the petitioner did not avail the opportunity of personal hearing.
The learned counsel for the petitioner then tried to assail the order of blacklisting on merit. We are afraid that such submissions cannot be entertained in writ jurisdiction as it would require reassessment of evidence. At this juncture, the learned counsel for the respondents reiterated that there being an arbitration clause in the agreement, this petition should not be entertained. He has brought to the notice of this court the agreement entered into between the petitioner and the respondents. Clause 16 of the agreement provides for arbitration and is as follows:-
"16. All questions, disputes and differences arising under or in relation to this Agreement shall be referred to the sole arbitration of the Director (Marketing) of the Company. If such Director (Marketing) is unable or unwilling to act as the sole arbitrator, the matter shall be referred to the sold arbitration of some other officer of the Company by such Director (Marketing) in his place, who is willing to act as such sold arbitrator. It is known to the parties herein that the Arbitrator appointed hereunder is an employee of the Company and may be Shareholder of the Company. The arbitrator to whom the matter is originally referred, whether the Director (Marketing) or officer, as the case may be, on his being transferred or vacating his office or being unable to act, for any reason, the Director (Marketing) shall designate any other person to act as arbitrator in accordance with the terms of the Agreement and such person shall be entitled to proceed with the reference from the stage at which it was left by his predecessor. It is also the term of this Agreement that no person other than the Director (Marketing) or the person designated by the Director (Marketing) as aforesaid shall act as arbitrator. The award of the Arbitrator so appointed shall be final, conclusive and binding on all the parties to the Agreement and provisions of the Arbitration & Conciliation Act 1996 or any statutory modification or re-enactment thereof and the Rules made there under and for the time being in force shall apply to the arbitration proceedings under this clause. The venue of the arbitration shall be NOIDA."
In support of his case, the petitioner has placed reliance upon the case M/s Kesarwani Transport Co. (supra). In the said case this Court came to the conclusion that before passing the order of blacklisting, no show cause notice, whatsoever, was served upon the petitioner of that case, and in the said circumstances this Court quashed the order of blacklisting despite there being a provision for arbitration.
In the present case, the petitioner was not only given an opportunity to show cause but an opportunity of personal hearing was also afforded to the petitioner before the order of blacklisting was passed. Thus, there was no violation of the principles of natural justice as alleged by the learned counsel for the petitioners. In the circumstance the case law cited by the learned counsel for the petitioner is of no help to the petitioner.
There being an alternative remedy of arbitration available to the petitioner, this Court is not inclined to entertain this writ petition.
The writ petition is accordingly dismissed. It is, however, open to the petitioner to avail the remedy of arbitration, if so advised.
Dated : 19.7.2013 vs