Madhya Pradesh High Court
M/S Shri Swamiji Petroleum vs General Manager Indian Oil Corporation ... on 14 July, 2011
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Writ Petition No : 8157 of 2009
M/s Shri Swamiji Petroleum
- V/s -
Indian Oil Corporation Ltd. and others
Present : Hon'ble Shri Justice Rajendra Menon.
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Shri A.S. Jha, Senior Advocate, with Shri B.M.
Prasad for the petitioner.
Shri Aditya Adhikari for the respondents.
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Whether approved for reporting: Yes / No.
ORDER
14/07/2011 Challenging the order-dated 25.7.2009 passed by the respondents terminating the dealership for the retail outlet of the petitioner, this writ petition has been filed.
2- Petitioner is a dealer of various petroleum products being distributed by M/s Indian Oil Corporation Limited and has his retail outlet at Pipariya Road, Bareli, District Raisen. On 19.1.2009, at about 12 in the midnight, respondent No.3 is said to have visited the petroleum outlet of the petitioner and took samples. On analysis the sample of Motor Spirit (MS) and High Speed Diesel (HSD) were found to be beyond the permissible limit in various factors and, therefore, finding the 2 petroleum products to be adulterated, the impugned action is taken. It is the case of the petitioner that when respondent No.3 visited the premises of the petitioner on 19.1.2009, respondent No.3 ordered for certain food and other materials and when the employees available in the outlet refused to succumb to the illegal demands of respondent No.3, the impugned action is taken.
3- Shri A.S. Jha, learned Senior Advocate, inviting my attention to the inspection reports and other material available on record submitted that the density of the product taken is shown to have various results in different samples that were collected, it is pointed out that after the samples were taken and when the testing of the samples were done, the sample withdrawn by respondent No.3 and which were classified as dealers sample was not found to be having so much variation as was having in the sample with the company. It is further stated that at the request of the petitioner samples were retested and in the retesting also there was variation. Accordingly, it is said that the sample retained by the petitioner and the sample kept by the Oil Company does show variation in results, contending that the testing has not been done properly and the petitioner has been proceeded against without any complaint and in violation to the provisions of Clause 2.4 of the Marketing Discipline Guidelines, 2005, which contemplates sending the sample for testing within 10 days and further contending that the report - Annexure P/4 submitted is not signed by the testing authority, interference into the matter is sought for.
4- It is stated that in the facts and circumstances of the case, the petitioner has been proceeded against and the penalty of terminating the dealership of the petitioner is undertaken in a grossly illegal manner. It is stated that in the test report dated 19.1.2009 the density of MS was recorded 732.1 whereas in the sample test in the Laboratory the density was 736.4. It is pointed out that in the sample submitted by the sales office for the purpose of second test was having density 764.8 and this 3 difference in the density of the sample received is due to mischief of respondent No.3 and, therefore, on the ground of mischief by respondent No.3, contending that in an arbitrary manner samples have been tested and the action is taken, which is unsustainable, interference into the matter is called for.
5- Respondents have filed a detailed reply and have refuted the aforesaid. It is pointed out by them that the samples were taken in accordance to the prescribed norms, there was no illegality in the testing undertaken and a wide variation of density of Motor Spirit beyond permissible limit in the sample collected by the field officer was detected and as the physical density of the depot retention sample and the TT retention sample is found, it is stated that a case of adulteration is made out. Respondents in paragraph 12 of the return, have indicated the various readings and it is stated that the readings received are beyond the permissible limit and, therefore, the failure indicates adulteration of Motor Spirit. It is pointed out that the density recorded is even beyond the permissible limit as specified by the Bureau of Indian Standards. According to the respondents the entire action is taken against the petitioner in accordance to the Marketing Discipline Guidelines and Clause 2.5 thereof and as the sample collected has failed not only in the density, but also in Final Boiling Point and RON, the action is taken. In the return filed by the respondents it is stated that the sample of the dealer, which was retained by the dealer, was found to have better readings even for depot retention sample and, therefore, it is stated that it is a case of adulteration and as the action is taken under the Marketing Discipline Guidelines, which has binding force between the parties, no action is made out for interference.
6- I have heard learned counsel for the parties and perused the records.
7- From the records it is clear that petitioner's dealership outlet was inspected by respondent No.3, the Field Officer, in a routine 4 check conducted in the night. Even though petitioner has made an allegation that respondent No.3 was annoyed with the petitioner's staff as his illegal demands were not met, there is no evidence or material to substantiate the aforesaid contention.
8- Neither during the course of hearing nor in the writ petition, petitioner has demonstrated before this Court or has shown any statutory rule or regulation being violated in the matter of checking of sample or analysis of the sample in the Laboratory. Except for contending that there is variation in the results of the sample and pointing out that the signature of the testing officer is not available in Annexure P/4, nothing is brought to the notice of this Court on the basis of which action taken can be termed as illegal. Respondent is a Company in the Public Sector Undertaking and in the absence of any evidence of bias or prejudice of the Company or its Officers towards the petitioner, it has to be assumed by this Court that the respondents have discharged the functions in accordance to the required provisions.
9- The Marketing Discipline Guidelines contemplate various procedures for testing and under Clause 2.5(d) it is clearly indicated that in case of sample failure, which results in adulteration of MS or HSD, the penalty of termination can be imposed.
10- In the present case, the Motor Spirit from the petitioner's petroleum outlet was taken in accordance to the prescribed norms and procedure, and the same having been found to be not in accordance to the standards prescribed, a case of adulteration is made and the action taken. Once the respondents have taken action in accordance to the prescribed norms and there is nothing before this Court to indicate that the action taken is contrary to any statutory provisions, rules or regulations, action in violation to the principles of natural justice, this Court in exercise of its limited jurisdiction in a petition under Article 226 & 227 of the Constitution cannot interfere in the matter.
511- As far as the objection of the petitioner with regard to the report - Annexure P/4 not being signed by the testing authority is concerned, now after a computerized testing result is generated, signature of the authority is not necessary as is indicated in the note itself. Keeping in view the aforesaid, this Court does not find any ground to uphold this objection.
12- The grounds raised by the petitioner in this writ petition are not such on the basis of a which a reasonable decision taken by the respondents based on test report received from duly authorized laboratory cannot be termed as illegal or perverse warranting interference in these proceedings.
13- Accordingly, finding no merit in the claim made by the petitioner warranting consideration, the petition is dismissed.
( RAJENDRA MENON ) JUDGE Aks/-