Allahabad High Court
M/S Bharat Pradhan Filling Centre And ... vs Indian Oil Corporation Ltd. And 3 Others on 6 September, 2023
Author: Piyush Agrawal
Bench: Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:175306 RESERVED Court No. - 5 Case :- WRIT - C No. - 11396 of 2022 Petitioner :- M/S Bharat Pradhan Filling Centre And Another Respondent :- Indian Oil Corporation Ltd. And 3 Others Counsel for Petitioner :- Yash Padia,Kshitij Shailendra Counsel for Respondent :- Rituraj Singh,Devi Shanker Shukla HON'BLE PIYUSH AGRAWAL,J.
1. Heard Shri Yash Padia, learned counsel for the petitioners and Shri Anil Kishore Sharma, learned Senior Advocate, assisted by Shri Devi Shanker Shukla, learned counsel for the respondents - Corporation.
2. The instant writ petition has been filed challenging the impugned order dated 04.02.2022 passed by the respondent no. 4 - Executive Director, Retail Sales, N & E, Indian Oil Corporation Limited, Mumbai as well as the impugned order dated 27.11.2020 passed by the respondent no. 3 - Chief Divisional Retail Sales Manager, Gorakhpur, with a further prayer to direct the respondents to restore the petroleum products at the retail outlet of the petitioner.
3. Sri Sharma raised a preliminary objection about the maintainability of the writ petition by submitting that the present writ petition is not maintainable as it is not a case where this Court may exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. He further submits that the petitioners may be relegated to avail its alternative remedy by invoking civil jurisdiction, if so advised.
4. Learned Senior Counsel, in support of his preliminary objection, has placed reliance upon the judgement of this Court in the case of M/s ECI SPIC, SMO MCMI (JV) Vs. Central Organization for Railway Electrification Allahabad and another, 2017 0 Supreme (All) 2374 as well as the judgement of Hon'ble the Apex Court in the cases of Harbanslal Sahnia and another Vs. Indian Oil Corporation Ltd.& others, 2003 2 SCC 107, Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd. 2005 (6) Supreme 328 and Tata Cellular Vs. Union of India, 1994 6 SCC 651 and submitted that there is limited scope of judicial review in the contractual matter. He further submitted that there is an efficacious alternative remedy of civil jurisdiction against the impugned orders and therefore, the instant writ petition should not be entertained in such matter.
5. Rebutting the said submissions, leaned counsel for the petitioners submits that the instant writ petition is maintainable as the impugned order has been passed in appeal by the respondent no. 4. He further submits that the petitioners had approached this Court earlier on five occasions and this is sixth round of litigation. He further submits that the Division Bench as well as the Single Bench of this Court on various occasions, on almost identical set of facts, not only maintained the writ petition, but also directed for resuming the supply to the petitioners therein. In support of his contention, he has placed reliance upon the judgements in M/s Modern Service Station Vs. Indian Oil Corporation Limited & 5 Others [Writ C No. 13514/2022, decided on 18.05.2023], M/s Kamalkant Automobiles & Another Vs. Hindustan Petroleum Corporation Limited & Others [2019 (3) ADJ 307 (DB)], M/s Chaudhary Filling Point, Kazipur & Another Vs. State of U.P. & Others [2019 (3) ADJ 345 (DB) (LB)] as well as Writ C No. 67004 of 2014 (M/s Sainik Krishak Sewa Kendra vs. Indian Oil Corporation Ltd. and another) which was disposed of by this Court on 6.9.2016 after considering various judgements of the Apex Court and submits that the writ petition is maintainable.
6. After considering the submissions of the parties and the judgements relied upon, herein-above, recently, this Court in the case of M/S Aliganj Kisan Seva Kendra, Aliganj & Another Vs. Indian Oil Corporation Ltd. & 3 Others [Writ C No. 16998 of 2023, decided on 04.09.2023], after detailed discussion on the matter of maintainability of the writ petition on an identical set of facts, has not only maintain the writ petition, but also directed to resume the supply of retail outlet of the petitioner therein. This Court has held as under:-
"11. So far as the law laid down by this Court in the case of M/s ECI SPIC-SMO-MCMI (JV) (Supra) is concerned, the Court after considering the material on record in that case has dismissed the petition on the ground of availability of arbitration clause and same view has also been express by the Apex Court in the case of Harbanslal Sahnia (supra).
12. Further in the case of Mrs. Sanjana M. Wig(supra), the parties themselves had appeared before the Arbitrator and settled their dispute to pay certain amount in instalments with interest but the appellant committed default in payment for some reasons, therefore, the Court declined to interfere in the matter in exercise of writ jurisdiction.
13. The petitioners have already availed the remedy of arbitration clause. An award was passed in favour of the petitioners. Thereafter, during pendency of execution application, a deed of settlement was executed on 08.09.2011 between the parties. Therefore, on the facts of the case in hand, the two judgements relied upon by the counsel for the respondent - Corporation in paragraph no. 10 are of no held to them.
14. Similarly, the judgement relied upon by the respondent in paragraph no. 11 is entirely distinguishable on the facts of the present case as the case in hand, the respondent is not claiming any settlement were entrered between the parties for payment of any amount which has been defaulted by the petitioners, to which the writ petition is not maintainable.
15. So far as the judgement passed in the case of Tata Cellular (supra) is concerned, the Apex Court considered that the tender invited to issue the cellular mobile operating services and on that ground the Apex Court has made certain observations with regard to the allotment of contractual services whether judicial review can be made or not and on that aspect the matter was decided and it was held that the terms of the invitation to tender as well as allotment cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. The decision to accept the tender or award the contract is reached by the process of negotiations through several tiers and such decisions are made qualitatively by experts.
Accordingly, the Apex Court decided that there will be a limited judicial review of the matter but the case is hand is entirely different as it is not a case of allotment of retail outlet but running retail outlet has been terminated on the basis of some inspection being made by the oil corporation, (which will be dealt later on).
17. In view of above, the judgement relied upon by the counsel for the respondents is of no aid to him.
18. Now, the Court deals with the individual judgements relied upon by the counsel for the petitioner.
19. The Division Bench of this Court in the case of M/s Kamalkant Automobiles & Another Vs. Hindustan Petroleum Corporation Limited & Others [2019 (3) ADJ 307 (DB)] has held that with regard to the prayer for restoration of the dealership, the only remedy available to the party is by means of the writ petition as neither a civil suit is maintainable, nor there is a remedy available before the Arbitrator appointed in terms of the arbitration clause contained in the agreement and therefore, the writ petition is maintainable and the alternative remedy does not provide for effective and efficacious remedy to the petitioner for the reliefs sought.
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20. The Division Bench of this Court in another case of M/s Chaudhary Filling Point, Kazipur & Another Vs. State of U.P. & Others [2019 (3) ADJ 345 (DB) (LB)], in paragraph nos. 21, 22, 23, 24, 25 & 46 has held as under:-
"21. During the course of arguments, the Counsel for the Corporation has urged that the appeal preferred by the petitioner was not the proper remedy, and the proper course available to him was to initiate arbitration proceedings under Clause 69 of the dealership agreement dated 12.9.2012. This assertion of the respondent has been rebutted with vehemence by the petitioner, who stated that the stand taken by the respondents regarding the applicability of arbitration in view of clause 60 of the dealership agreement dated 12.9.2012 in the case of termination is completely misplaced because of the fact that it is beyond the scope and ambit of arbitral forum to restore a dealership after it is terminated. Therefore, the remedy of arbitration in a case like this is redundant and ineffective and the petitioners cannot be forced to avail a redundant remedy in law.
22. In this regard, we would like to mention that Clause 8.9 of the MDG provides for remedy of appeal to the Executive Director, Retail in the Headquarter, which has to be decided by him within a period of 90 days from the date of filing of the appeal. Clause 8.9 of the unamended MDG, 2012, reads as under:-
"8.9 Appellate proceedings :
1. In case of orders in critical irregularities, the dealer will have the right to appeal within a period of 30 days from the date of receipt of order, before the appropriate authority who will be empowered to decide the matter and the appeal shall be disposed off preferably within 90 days from the date of filing the appeal in the office of the appellate authority.
2. For all appeals in case of critical irregularities, except termination in case of SC/ST dealerships, the appellate authority will be the ED (Retail) in the Head Quarters or any other ED level officer at the Head Quarter so nominated by the company. For all cases of termination of SC/ST dealerships, the appellate authority will be a Director other than Director (Mktg.) of the OMC.
The amended Clause 8.9 of the MDG, which has come into force recently reads as under:-
"8.9 Appellate proceedings: 1. In case of termination arising out of invocation of MDG, the dealer will have the right to appeal within a period of 30 days from the date of receipt of order, before the Appellate Authority, through the concerned Divisional / Territory / Regional office of the Oil Marketing Company (OMC). The Appellate Authority is empowered to decide the matter and the appeal shall be disposed of preferably within 90 days from the date of filing the appeal in the Divisional / Territory / Regional office of the concerned Oil Marketing Company (OMC).
2. For all appeals in case of termination arising out of invocation of MDG, the Appellate Authority will be the Dispute Resolution Panel (DRP) nominated by the OMC. The Dispute Resolution Panel (DRP) will comprise of the following members:- i) A retired Judge of the High Court - Member 1. ii) A retired Government servant who held post not below the rank of Joint Secretary in Govt. of India or equivalent rank - Member 2. iii) A retired official of PSU Oil Marketing Companies who held the post not below the rank of Director - Member 3. The Retired Judge of the High Court in the Committee will be the Chairperson. The terminated dealer preferring appeal would be required to deposit Non-refundable Appeal fee of Rs.5 lakhs along with their appeal to the concerned OMC. In case of SC/ST dealer, Rs.2 lakhs Non-refundable Appeal fee is required to be paid along with their appeal. However, if appeal results in verdict in restoration of the Dealership, 50% of Appeal fee amount shall be refunded."
23. Therefore, it is wrong to say that preferring an Appeal by the petitioner against the order of termination was unfruitful exercise, is wholly unacceptable. If a forum has been created in the Rules/Guidelines then the proper course would be to exhaust that forum. Moreover, such an objection was not raised by the Corporation at the Appellate Forum and as such, legally, it cannot be raised here.
24. As regard the Arbitration, it has rightly been asserted that the Arbitrator has no power to restore the distributorship, in the event the termination is found unlawful. The Apex Court in the case of IOCL vs. Amritsar Gas Service (1991) 1 SCC 533; E. Venkat Krishna Vs. IOCL and anor (2000)7 SCC 764 and Sanjana M. Wig Vs. HPCL; (2005) 8 SCC 242 has held in explicit words that an arbitration forum does not have the jurisdiction for the restoration of dealership, which was earlier terminated. All that the arbitrator could do, if he found that the termination of the distributorship was unlawful, was to award damages, as any civil court would have done in a suit. In Civil Misc. Writ Petition No. 51972 OF 2008 M/s Navin Filling Station vs. Indian Oil Corporation Ltd & Ors, this court observed as under:
"The presence of the arbitration clause, is not to drive away a genuine grievance arising out of disproportionate action of the Corporation, to the arbitral tribunal which in any case will not have the authority to give an award to restore the dealership. In the present case the Indian Oil Corporation terminated the agreement relying upon the clauses, which were not attracted and on the Marketing Discipline Guidelines framed for facilitating the marketing of the petroleum products on the principles of good governance and excellent customary service. The preamble to the guidelines itself provide that the guidelines need to be constantly updated to meet the customer satisfaction and to the discipline dealership network and for preventing malpractices in the sale of petroleum products."
25. In these circumstances, we find force in the arguments advanced by the learned Counsel for the petitioner that Arbitration between the parties is not an efficacious and proper remedy in such cases.
46. Taking the holistic view of the matter, the writ petition is allowed and the impugned order of termination dated 14.7.2017 as well as the appellate order dated 14.6.2018 are hereby quashed. The opposite parties are directed to resume supply of the petitioner's RO within a week from today. All miscellaneous pending applications stand closed accordingly."
21. In view of the aforesaid legal proposition, this Court is of the view that the instant writ petition is maintainable and the same is being entertained as neither any civil suit, nor other effective and efficacious remedy, as suggested by the learned counsel for the respondent - Corporation, for the relief sought in the petition, particularly, restoration of the dealership of the petitioner, is available to the petitioners.
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53. In view of the aforesaid facts & circumstances of the case, the impugned order cannot be sustained in the eyes of law. The impugned order dated 03.05.2023 passed by the respondent no. 2, i.e., Executive Director (Retail Sales N & E), Indian Oil Corporation Limited, Mumbai is hereby quashed. The termination orders are also hereby quashed.
54. The writ petition succeeds and is allowed.
55. The respondent - Corporation is directed to resume the supply of the petitioners' retail outlet in question within a period of one week from the date of production of a certified copy of this order."
7. In view of the aforesaid legal proposition of this Court, as aforesaid, after considering the various judgemnets of this Court as well as Apex Court, the instant writ petition is maintainable and is being entertained accordingly as neither the civil court, nor other effective and efficacious remedy is available to the petitioners, particularly, restoration of the dealership.
8. The brief facts of the case are that the petitioners were allotted a 'B' site retail outlet by the respondent - Corporation and a dealership agreement was executed between the petitioners and the respondent - Corporation on 02.06.2011. The 'B' site retail outlet is one in which the offered land and the super structure will be developed by the dealer and pump, tank, automation, signage, etc., will be provided by the respondent - Corporation. Since the allotment of retail outlet dealership in the year 2011, there was no discrepancy found in the retail outlet. On 14.11.2019, an inspection was carried out at the retail outlet of the petitioners by the Anti Adulteration Team/Quality Reassurance Cell (QRC), in which some discrepancies were found. Thereafter, again on 15.11.2019, another inspection was carried out by the Multiple Disciplinary Team.
9. Thereafter, on 15.06.2020, a show cause notice was served upon the petitioners to show cause as to why the retail outlet be not terminated. The petitioners submitted detailed reply to the show cause notice on 29.06.2020. Unsatisfied with the reply of the petitioners, the impugned termination order dated 27.11.2020 was passed by the respondent no. 3 terminating the retail outlet dealership of the petitioners.
10. Against the termination order dated 27.11.2020, the petitioners approached this Court by filing Writ C No. 26546/2020, which was disposed of by this Court vide order dated 19.01.2021 with a direction that the petitioners may prefer appeal as provided under the Marketing Discipline Guidelines. This Court further waived pre-deposit of Rs. 5 lacs for considering the appeal.
11. When the said order of this Court was not complied with, the petitioners filed Misc. Contempt Application (Civil) No. 2034/2021, which was disposed of vide order dated 24.06.2021 granting one more opportunity to the respondent - Corporation to comply with the writ Court's order. In spite of the contempt Court's order, when the writ Court's order was not complied with, the petitioners preferred second contempt application, being Contempt Application (Civil) No. 3938/2021, in which a direction was issued vide order dated 30.09.2021 to the opposite party to decide the appeal within a month, failing which the opposite party was directed to appear in person before the Court on the next date fixed. Aggrieved by the order dated 30.09.2021, the respondent - Corporation preferred an SLP before the Apex Court being SLP (Civil) No. 16767/2021, which was allowed vide order dated 07.03.2022 staying the order of this Court.
12. During the pendency of the appeal, the Marketing Discipline Guidelines was amended. The petitioners preferred another writ petition before this Court being Writ C No. 23870/2021, which was disposed of vide order dated 09.11.2021 with an observation that the petitioners shall participate in the proceeding of appeal and the appellate authority shall decide the appeal within a period of two months after hearing the petitioners. Thereafter, the appeal of the petitioners was rejected vide impugned order dated 04.02.2022. Hence, this writ petition.
13. Learned counsel for the petitioners submits that the petitioners were allotted the retail outlet in the year 2011 and the inspections were being undertaken from time to time, in which no discrepancies, whatsoever, was ever found. He further submits that till 13.11.2019, when a survey was conducted, everything was found intact, but on the survey dated 14.11.2019, in the evening, certain discrepancies were pointed out and allegations have been levelled against the petitioners. At the time of survey, the owner of the petitioner - retail outlet was not available, but the authorized person was present who cooperated in the survey, but all of a sudden at 08.00 p.m., the authorized person, namely, Mr. Aamir Khan, felt unwell and therefore, went to the Doctor for check-up. The alleged report was prepared wherein certain cuttings/overwriting can be seen by the naked eye. He further submits that the said report cannot be treated as correct as there were cuttings and overwriting on the same. He further submits that for the first time, the said report was made available to the petitioners, along with the show cause notice dated 15.06.2020. Prior to it, various requests were made, but of no avail.
14. He further submits that the notices, which were sent by the respondent - Corporation on 04.12.2020 and 20.02.2020, were replied in detail. Since the report dated 14.11.2019 was not available, therefore, it was submitted that due to unavailability of proper lighting at the deep, inspection could not be carried out properly and therefore, some discrepancies have occurred. He further submits that the allegations of excess stock being found could not be assessed due to unavailability of proper lighting. He further submits that it is the case of the respondent - Corporation that on inspection dated 15.11.2019, the stock was found within the permissible limit, but have drawn an adverse inference without any basis that the excess stock, which was found at the time of inspection dated 14.11.2019, has been removed without the aid of dispensing nozzle.
15. Learned counsel for the petitioners further submits that along with the impugned termination notice dated 15.06.2020, for the first time, the inspection report was made available to the petitioners, and on perusal of the same, it is evident that in the alleged inspection report, at various places, where the stock was recorded, multiple overwriting and cuttings were there, which, prima facie, doubt genuineness of the report and it could be said that the report was not prepared at the site, but otherwise with ulterior motives. He further submits that the said point was specifically being raised/pressed in the reply to the termination notice through letter dated 29.06.2020, but the said point was noticed in the impugned order dated 27.11.2020, still not a word has been whispered or any material was brought on record to suggest as to justify how cuttings/over writing at various places have been crept up. Once it has not been disputed by the respondent - Corporation at any stage, the genuineness and authenticity of the report prepared on 14.11.2019 cannot be relied upon. More so, when a day prior to the survey and a day after survey the stock was found within the permissible limit.
16. Learned counsel for the petitioners further submits that sample was drawn at the time of survey dated 14.11.2019 and there was no adulteration and the report was up-to-mark. Therefore, no adverse inference could have been drawn against the petitioner's retail outlet. He further submits that since in the impugned order, it is categorically mentioned that termination is made only on the basis of variation in the stock, therefore, the petitioners are not pressing other point at this stage. He further submits that the respondent - Corporation has blindly relied upon only the survey dated 14.11.2019 while passing the impugned orders, where the excess stock of patrol and diesel has allegedly been found, without whispering a word about the cuttings and overwriting in the report with regard to stock and therefore, the same cannot be relied upon in absence of any material to justify the cutting/overwriting. Therefore, the impugned orders are vitiated.
17. Learned counsel for the petitioners further submits that all the allegations made against the petitioners for disposing of the stock at the night of 14/15.11.2019 are baseless and without there being any material. Therefore, the petitioners cannot be put to a negative burden. He prays for allowing the writ petition and restoration of the supply to the petitioners' retail outlet.
18. Per contra, learned Senior Counsel for the respondent - Corporation submits that the conduct of the petitioners was not correct as the date of survey on 14.11.2019 is not in dispute at any stage. The survey was conducted on 14/15.11.2019. The person In-charge, namely; Aamir Khan, was present, but on his sweet will, he has recused from the site at 08.00 p.m. as well as nobody was ready to sign the inspection report prepared at the site on 14.11.2019. He further submits that there was excess stock found, which could not be rebutted by any cogent material by the petitioners. Moreover, when this fact was brought to the notice, the same was removed in the intervening night of 14/15.11.2019, which is proved from the very next day survey, i.e., on 15.11.2019 and when again measurement was taken by the same method , the stock was found to be within permissible limit. He further submits that such a huge quantity of 3587 liters of patrol and 1262 liters of diesel cannot be removed within a night from nozzle dispenser. It is further submitted that before leaving the retail outlet on 14.11.2019, it was informed to the petitioners that all sale has been suspended, but without adhering to the suspension of sale, from all tankers, the petitioners removed the excess stock, which is against the Marketing Discipline Guidelines. He further submits that the conduct of the petitioners falls under clause 8.2(vi), read with clause 5.1.6, of the Marketing Discipline Guidelines and therefore, the dealership of the petitioners has been terminated at the first instance with regard to unauthorized purchase/sales of products.
19. Learned Senior Counsel further submits that the petitioners, at no point of time, justified that there was no proper lighting. Therefore, the allegation that the measurement has not been done properly is an afterthought. He further submits that the instant writ petition is liable to be dismissed as the petitioners could not able to justify the excess stock at the time of inspection dated 14.11.2019. He prays for dismissal of the writ petition.
20. After hearing learned counsel for the parties, the Court has perused the record.
21. It is admitted between the parties that the petitioner is a 'B' site retail outlet dealer in pursuance of agreement dated 02.06.2011. It is also not in dispute that the inspection was carried out on 13.11.2019, where no discrepancies, whatsoever, were found, but in the evening of 14.11.2019, an inspection was carried out by the Anti Adulteration Team/Quality Reassurance Cell, which was continued upto 08.30 p.m. It is also admitted that the authorized person, namely, Aamir Khan, left the site at 08.00 p.m. without signing the report. In the said report, various irregularities were pointed out. The main irregularity was with regard to excess stock of patrol and HSD and on the said ground, the sale was suspended from all tankers. On the next date, when the survey was again conducted, i.e., on 15.11.2019, the stock was found within the permissible limit. A inference was drawn by the respondent - Corporation that the stock, which was found a day prior to the inspection, has been removed in an unauthorized manner and in view of the excess stock found as per the inspection dated 14.11.2019, action is liable to be taken as per clause 8.2(iv), read with clause 5.1.6, of the Marketing Discipline Guidelines, which authorized the respondent - Corporation to terminate the retail outlet at the first instance, the said decision for termination of the dealership of the petitioners was solely based upon the survey dated 14.11.2019.
22. It is also not in dispute that till 13.11.2019, there was no deviation of stock as per the record, but only on 14.11.2019, at the time of inspection, the stock was fond to be in excess, which has seriously been disputed by the learned counsel for the petitioners; whereas, on that basis, the respondent - Corporation has terminated the retail outlet of the petitioners. As per the stand taken by the petitioners, that copy of the survey report dated 14.11.2019 was provided for the first time along with the termination notice dated 15.06.2020. On perusal of the same, a detailed reply was submitted on 29.06.2020 (Annexure No. 10 to the writ petition). In the said reply, a specific point was raised that there was cutting/over writing in the said report, which reads as follows:-
"दिनांक 14.11.2019 की निरिक्षण रिपोर्ट ऑनलाइन नहीं बनायीं गयी है और रिपोर्ट देखने से ऐसा प्रतीत होता है की उक्त निरिक्षण रिपोर्ट पम्प परिसर के अलावा कहीं और मनगढंत बनाया गया है। दिनांक 14.11.2019 निरिक्षण रिपोर्ट कई स्थानोँ पर अंकों का संसोधन, हेराफेरी एवं अभिलेखन है एवं दिनांक 14.11.2019 की निरिक्षण रिपोर्ट प्रार्थिनी को प्रताड़ित करने एवं किन्ही अन्य अपेक्षाओं के कारन दुर्भावना से बनायीं हुई प्रतीत होती है। "
23. The said point, which was pressed and relied upon by the petitioners, though noticed in the impugned order, but neither proper reason nor any justification, nor a word has been said with regard to cuttings/over writing has been assigned in the impugned order dated 27.11.2020 (Annexure No. 11 to the writ petition). In page no. 4 of the impugned order, following contention of the petitioners has been made:-
4. Inspection report dated 14.11.2019 was not made online and after perusing the report it appear that subject report is fake and prepared at some other place and no in RO premises. In the inspection report dated 14.11.2019 there is correction, manipulation and recording of digits at several places and inspection report dated 14.11.2019 was prepared with malafide intentions to harass the Dealer and for some other expectations because concerned officers when their wishes were not fulfilled have mentioned absurd and unimaginable remark ......
The inspection report dated 14.11.2019 was made at RO itself by QRC Team but since your representative had left the RO, and there was no one ready to sign the report, therefore, it could not be handed over at the RO. QRC team had given internal communication vide mail dated 15.11.2019 to Gorakhpur Divisional Office regarding threatening of QRC Officers by unknown persons at RO. Due to that sealed sample containers could not be taken by them and DO was requested by QRC team to send the samples.
Officials of Quality Reassurance Cell were from Delhi office, hence, they had no prejudice against the dealer.
You have not submitted any evidence regarding lack of proper lighting at the RO, hence, your submissions are totally vague and appears to be an afterthought.
Page No. 4 of the impugned order, as quoted above, clearly shows that not a single word has been whispered with regard to specific arguments pressed and taken by the petitioners.
24. Once, the genuineness of the report is not beyond shadow of reasonable doubt, where there was cutting/overwriting, has neither been disputed, nor a word has been whispered in the impugned order, the said report cannot be relied upon in the eyes of law. More so, when samples were drawn and no adulteration was found, the termination of dealership cannot be justified. The impugned order dated 04.02.2022 has affirmed the order dated 27.11.2020 and the termination of the petitioners' retail outlet has been confirmed. The petitioner was held for unauthorized purchase and sale of the product as per clause 5.1.6, read with clause 8.2(vi), of the Marketing Discipline Guidelines.
25. In paragraph no. 8 of the writ petition, it has been specifically averred that on perusal of the report dated 14.11.2019, there were overwriting / cuttings at multiple places where the stock has been recorded, which doubts the genuineness of the report, which reads as under:-
"8. That in the alleged inspection report dated 14.11.2019, no signature of any representative of the retail outlet was obtained. It is also evident from a perusal of the report that at multiple places, where the stock has been recorded, multiple over writings and cutting can be observed which prima-facie establish that the said inspection report was prepared with pre-mediated mind set and the same was never prepared on the site of the retail outlet or in the presence of any representative of the concerned retail outlet."
26. The content of paragraph no. 8 of the writ petition, has not been specifically rebutted in paragraph no. 9 of the counter affidavit, which reads as under:-
"9. That the contents of paragraph no. 8 of the writ petition are denied as stated and in reply thereto it is submitted that the inspection report dated 14.11.2019 was prepared at the spot and signed by the QRC members which representative present at RO refused to sign the report. As per the inspection report itself, "dealer disappeared from the RO and other refused to sign the report". Other allegations in the para under reply are also denied. Further, as per the inspection report, stock variation in the MS and HSD both found beyond permissible limit and as such QRC recommended to suspend the supplies."
27. On perusal of the aforesaid paragraph no. 8 of the writ petition as well as reply to it in paragraph no. 9 of the counter affidavit, it is evident that the respondent - Corporation could not justify the cuttings/over writings at various places while preparing the report dated 14.11.2019.
28. The basis for taking action against the petitioners is only the report dated 14.11.2019 where the alleged stock was found in excess. The record further reveals that on the inspections dated 13.11.2019 and 15.11.2019, the stock was found to be within permissible limit. Therefore, the sole basis for initiation of the proceedings against the petitioners was only the report prepared on 14.11.2019 where, in the writ petition as well as in the report to the notice of termination, a specific point was raised and though the same has been recorded at serial no. 4 while passing the impugned order (Annexure No. 11 at page 110 of the writ petition), but not a single word has been uttered justifying the cuttings/overwriting or any contrary material has been brought on record, even before this Court.
29. In view of the above, when there are cuttings / overwriting in the report prepared on 14.11.2019, therefore, the genuineness of the report is not beyond shadow of reasonable doubt, and thus, the entire process of initiation of proceedings against the petitioners is vitiated and is liable to be quashed.
30. In view of the aforesaid facts & circumstances of the case, the impugned orders cannot be sustained in the eyes of law. The impugned order dated 04.02.2022 passed by the respondent no. 4 - Executive Director, Retail Sales, N & E, Indian Oil Corporation Limited, Mumbai as well as the impugned order dated 27.11.2020 passed by the respondent no. 3 - Chief Divisional Retail Sales Manager, Gorakhpur are hereby quashed.
31. The writ petition succeeds and is allowed.
32. The respondent - Corporation is directed to resume the supply of the petitioners' retail outlet in question within a period of one week from the date of production of a certified copy of this order.
Order Date :-06/09/2023 Amit Mishra