Allahabad High Court
M/S Jalan Service Station Bulandshahr vs Union Of India Through Secretary New ... on 16 October, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - C No. - 26792 of 2003 Petitioner :- M/S Jalan Service Station Bulandshahr Respondent :- Union Of India Through Secretary New Delhi And Others Counsel for Petitioner :- Shashi Nandan,Amit Saxena,Krishna Murari Counsel for Respondent :- S.S.C.,Arun Tandon,Arvind Kumar Goswami,B.N.Singh,Vikash Budhwar Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Shashi Nandan, learned Senior Counsel assisted by Mr. Amit Saxena, learned counsel for petitioner, Mr. Arvind Kumar Goswami, learned counsel representing respondent no.1, Mr. Vikash Budhwar, learned counsel representing respondent Nos. 2 and 5 and learned Standing Counsel representing respondent no.3.
2. This writ petition is directed against the order dated 16.06.2003 passed by respondent no.2, Senior Regional Manager, and duly constituted Attorney of Hindustan Petroleum Corporation Ltd, Agra (hereinafter referred to as HPCL, Agra) terminating dealership agreement of petitioner dated 22.09.1980. The aforesaid dealership agreement was cancelled on the ground of irregularities and failure to abide by terms and conditions of retail outlet.
3. It is alleged that a checking was made at the petitioner retail outlet on 5th April, 2002. and Checking Team had taken samples of Petroleum Product from petitioner retail outlet. According to Oil Company the sample so collected from petitioner's retail outlet failed to meet stipulated specifications. Accordingly a show cause notice dated 10th May, 2002 was issued to the petitioner which was replied by petitioner vide reply letter dated 18.05.2002. Thereafter, impugned order dated 16.06.2003 was passed by the Competent Authority.
4. Perusal of impugned order dated 16.03.2006 goes to show that same has been passed after considering the requirements of terms and conditions governing retail outlet as is evident from paragraphs 4 and 6 of impugned order, which reads as under:-
" 4. That in reference to the above we sent you a show cause notice REF: ARR/LMM/BK, dated 10.05.2002 calling upon your explanation with regard to the failure of MS sample collected from your retail outlet which failed to meet the stipulated specifications. You replied the aforesaid show cause notice vide your letter dated 18.05.2002. Please take reference of the said show cause notice and your reply thereto, we have considered your aforesaid reply to the show cause notice, however we are not satisfied with your reply.
5. That you have failed to disclose in your aforesaid reply, the reasons for your failure to abide by all the obligations as per the agreement of the dealership or give plausible reasons of your aforesaid breach."
5. Mr. Shashi Nandan, learned Senior Counsel in challenge to the impugned order dated 16.06.2003 has submitted that petitioner in his reply letter dated 18.05.2002 has clearly stated as to why the alleged sample report could not form basis for cancellation of petitioner's retail outlet. Elaborating his arguments, he further submits that reason behind aforesaid submission is that unless the sample taken from petitioner outlet is matched with other sample no conclusion can be drawn regarding any defect in the samples collected from petitioner outlet. Such an exercise has to been undertaken as per provisions of Marketing and Discipline Guide Lines 2001. Only when such an exercise is undertaken, it can be concluded that sample taken from the petitioner retail outlet does not match from other sample. In the absence of above, no action could have been taken against petitioner.
6. It is then contended that averments contained in petitioner's reply dated 18.05.2002 have not been considered. For ready reference, relevant portion of reply reads as under:
"That you are well aware that to over come the altercations about the quality of the products and the fault of the dealer, a specific provisions has been made in MDG 2001 in which a whole of the chapter is devoted. In the MDG 2001 it is specifically provided that apart from keeping the records at the refinery and the Depot level, all the oil companies will fill two samples from the Lot from which the tank lorry of the dealer is filled. Out of these two samples, the Depot of the oil company will retain one sample with it for future reference and the second ample shall be given to the driver of the tank lorry which shall be kept by the dealer. It is further provided that at the Retail Outlet the dealer shall fill two samples from the Tank Lorry and shall send return one sample to the oil company and shall keep the other sample with him till next two suppliers. Thus, in all the dealer is supposed to keep the Lot Sample and the Tank Lorry sample with him. The MDG also provides that in case any sample is drawn from the Retail Outlet of any dealer and is sent to the Lab for testing, the said sample should be got matched with the Lot Sample kept at the Depot of the company, Lot sample kept by the dealer (if delivered by the company) and the Tank Lorry sample kept by the dealer at the Retail Outlet. Thus, in all the four samples be got matched while coming to any conclusion as to whether the sample is correct or is adulterated. It also provides that if these four samples are not got matched, no action (disciplinary or punitive) may be taken against the dealer implying that no value may be attached to the test report obtained without first matching the drawn sample with the Reference samples."
7. Apart from above, learned Senior Counsel submits that petitioner in his reply dated 18.05.2002 has also challenged the checking conducted by officers of the Oil Company, which is as under:
"That besides the above reasons the checking conducted by the officials of ACC is quite illegal, unauthorised and without jurisdiction and is nothing but a waste paper for the following reasons;
1. The AAC was formed under the OCC and the officer of OCC were entrusted the work ACC to inspect the pumps and check adulteration.
2. The OCC was abolished w.e.f. 01.04.2002 resulting in abolition of ACC. They lost all their existence w.e.f. 01.04.2002 and were not having any authority to check any pump.
3. That on 05.04.2002 there was no AAC officials was having in authorisation to check the pumps from the side of either the MOP&NG or any other authority.
4.That they were not Gazetted officers as on 05.04.2002 as the authorisation made through the Gazette of India was about the officials of OCC and with the exitinction of OCC the ACC had automatically became non existent.
5. That there was no officer from your company along with the inspecting team the presence of which is mandatory.
6. That the inspecting team did not consist the officers as desired under Sec. 4 of Order of 1998. All of them had lost powers, if any, conferred upon them.
7. That the Test got conducted by the ACC people were against the set and mandatory provisions of the MDG 2001 rendering whole of the exercise as illegal, unauthorised and without jurisdiction and fruitless. No attempt was made to secure the Reference sample from the company for arriving at the right conclusions.
8. That your corporation failed to take any notice of re presentations made on our behalf by UPPTA through its Secretary General. Compelled, we had to file a suit in the court of C. J. (S.D.) Bulandshahr, being Suit No. 375 of 2002, UPPTA Versus Indian Oil Corporation and others in which your corporation is is also a party and has put up its appearance. Thus, the matter is subjudice and no action is warranted at this stage; failing which it shall amount of court's contempt.
9. That the ACC officials visited the pumps without informing the District Administration.
10. That the ACC people tried to lodge a F.I.R. against us but failed. The matter at present is in active consideration before the District Magistrate, Bulandshahr and it will neither be expedient nor proper to over look the inquiry being conducted by the District Magistrate, Bulandshahr. This will amount to contempt.
11. That it is matter of distress that your corporation being the Principal is not trying to shield us against unscrupulous person having no authority to check the pumps and have acted against the set norms as provided under Order of 1998 and the MDG. Instead of asking those persons as to why they did not observe the provisions of order of 1998 and MDG and as to why they failed to matched the drawn samples with the Reference samples, the company has choosen to issue us a the show cause notice. While we see towards the company for saving our-self from undue harassment, the company is shielding the acts of others who are out to tarnish the image of the company.
12. That till this date you company is not willing and ready to disclose as to which quality, contents and composition the Petrol was supplied to us
13. That there is no provision whereby it may be readily inferred that what your company is producing or supplying, after receiving the lots from other companies refineries, meets the BIS standards as there are always a scope for the product being su-standard."
8. It is thus submitted that petitioner submitted a detailed reply letter dated 18.05.2002 to the show cause notice dated 10.05.2002 but same has not been considered. Without demonstrating as to why reasons and objections made in petitioner's reply are incorrect, respondent no.2, in a slip shod manner by a single line disbelieved the entire reply submitted by the petitioner and consequently rejected the same by observing that competent authority is not satisfied.
9. In view of discussions made above, inescapable conclusion is that impugned order does not satisfy the requirement of speaking order and is also ex-facie against the principles of natural justice. What the competent authority has done is recorded in its conclusion but the same is bereft of any reason supporting the conclusion so drawn. Consequently, impugned order is a non speaking order .
10. It is well known that "conclusions" and "reasons" are two different things and reasons show mental exercise of authorities in arriving at a particular conclusion.
11. In Union of India Vs. Mohan Lal Kapoor (1973) 2 SCC 836, as under:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached."
12. Referring to the above case law, Apex Court in Gurdial Singh Fijji Vs. State of Panjab & Ors (1979) 2 SCC 368 in para 18 said:
"We may also indicate, since the High Court saw the file and discovered that the appellant was not brought on the Select List because he was "not found suitable otherwise", that regulation 5 which deals with the preparation of a list of suitable officers provides by Clause 7 that "if in the process of selection, review or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession". While dealing with an identical provision in Clause 5 of regulation 5 of the same Regulations as they stood then, this Court observed in Union of India v. Mohan Lal Capoor and Ors. (1973)2 SCC 836 that "rubber-stamp" reasons given for the supersession of each officer to the effect that the record of the officer concerned was not such as to justify his appointment "at this stage in preference to those selected", do not amount to "reasons for the proposed supersession" within the meaning of Clause 5. "Reasons", according to Beg J. (with whom Mathew J. concurred) "are the links between the materials on which certain conclusions are based and the actual conclusions". The Court accordingly held that the mandatory provisions of regulation 5(5) were not complied with by the Selection Committee. That an officer was "not found suitable" is the conclusion and not a reason in support of the decision to supersede him. True, that it is not expected that the Selection Committee should give anything approaching the judgment of a Court, but it must at least state, as briefly as it may, why it came to the conclusion that the officer concerned was found to be not suitable for inclusion in the Select List. In the absence of any such reason, we are unable to agree with the High Court that the Selection Committee had another "reason" for not bringing the appellant on the Select List."
13. The Apex Court in the case of Uma Charan Vs. State of Madhya Pradesh & Anr. AIR 1981 SC 1915 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi-judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable"
14. In Mc Dermott International Inc. Vs. Burn Standard Co. Ltd. & Ors. (2006) 11 SCC 181 Apex Court referring to Bachawat's Law of Arbitration and Conciliation, 4th Edn., pp. 855-56 in para 56 said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions..."
15. Recently the Apex Court in Kranti Associates Private Limited & Anr. Vs. Masood Ahmed Khan & Ors. (2010) 9 SCC 496 referring to the judgment in Mohan Lal Capoor (supra) in para 23 said:
"Such reasons must disclose how mind was applied to the subject-matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two."
16. The Apex Court recently also in Competition Commission of India Vs. Steel Authority of India Ltd. & Anr. JT 2010 (10) SC 26 in para 68 referring to the judgment in the case of Gurdial Singh Fijji (supra) said:
"Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. By practice adopted in all courts and by virtue of judge- made law, the concept of reasoned judgment has become an indispensable part of basic rule of law and in fact, is a mandatory requirement of the procedural law. Clarity of thoughts leads to clarity of vision and therefore, proper reasoning is foundation of a just and fair decision."
17. We have examined impugned order in the light of terms and conditions of agreement and also reply dated 18.05.2002 submitted by petitioner. However, we find that there is no discussion of same in the impugned order. The manner in which the petitioner's reply has gone unattended, clearly shows that impugned order can not be said to be a speaking and reasoned order. The impugned order is wholly unreasoned and conclusion has been drawn without giving any reasons.
18. Learned counsel for the respondent -Oil Company despite his best efforts could not show any reason contained in impugned order so as to justify the same.
19. In view of the above, impugned order cannot be said to be reasoned and speaking order and conclusion has been drawn without giving any reason. Writ Petition is allowed and the impugned order dated 16.06.2003 (Annexure-17 to the writ petition) is quashed. However, this order shall not preclude respondent-authority in passing a fresh order in accordance with law.
Order Date :- 16.10.2019 YK