Calcutta High Court
Malati Saha vs Indian Oil Corporation And Ors on 1 May, 2024
OD -1
ORDER SHEET
WPO/370/2024
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
MALATI SAHA
VS
INDIAN OIL CORPORATION AND ORS
BEFORE:
The Hon'ble JUSTICE BIVAS PATTANAYAK
Date: 1st May, 2024.
Mr. Soumya Majumder, Adv.
Mr. D.R. Mukherjee, Adv.
Mr. Arijit Dey, Adv.
...for the petitioner
Mr. Amit Kumar Nag, Adv.
Mr. Partha Banerjee, Adv.
Ms. Pritha Bhaumik, Adv.
...for respondent nos. 1 to 4
The Court: Affidavit of service filed on behalf of the petitioners is taken on record.
In the present writ petition, the petitioners have challenged the orders passed by respondent no.2 dated 14th September, 2023 and appellate order passed by respondent no.3 dated 2nd April, 2024 imposing penalty upon the petitioners.
The brief fact of the case is that the petitioner nos.1, 3 & 4 run a partnership firm under the name and style of M/s. Jiban Jyoti (petitioner no.2) for LPG distributorship business of Indane under Indian Oil Corporation. On 14th July, 2023, inspection was held and allegedly six numbers of cylinders were found underweight beyond permissible limit. By 2 order dated 14th September, 2023, respondent no.2 imposed penalty upon the petitioners. The imposition of penalty was upheld by the appellate authority. Being aggrieved by such action of the respondents, the petitioners have preferred the present petition.
Mr. Amit Kumar Nag, learned advocate appearing for the respondent Indian Oil Corporation at the very beginning raised an issue that the present writ petition cannot be entertained under the Original Side Jurisdiction of this Hon'ble Court. Referring to Rule 4 of the Original Side Rules, he submits that since the addresses of all the respondents are not within the Original Side Jurisdiction of this High Court, this writ petition is not entertainable under the Original Side Jurisdiction.
On the contrary Mr. Soumya Majumder, learned advocate appearing on behalf of the petitioners submits that the first order for imposition of penalty has been passed by respondent no.2-Divisional LPG Sales Head (DLSG), whose office is within the Original Side Jurisdiction of this Hon'ble Court and such imposition of penalty is a substantial cause of action. If substantial cause of action arose on the Original Side, the writ petition can be entertained. To buttress his contention he relies on a decision of this Court passed in the case of Bagadiya Brothers Pvt. Ltd. versus Union of India and Ors. reported in (2015) SCC OnLine Cal 2811.
Having heard the learned advocates on aforesaid issue, let me examine as to whether the present writ petition is entertainable under the Original Side Jurisdiction of this Court.
3
It is not in dispute that the first order for imposition of penalty upon the distributor was passed by respondent no. 2, the Divisional LPG Sales Head (DLSH) having its office at 34A, Nirmal Chandra Street, Kolkata-13 which admittedly falls within the Original Side Jurisdiction of this Court. The imposition of penalty by said respondent no.2 upon the distributor is a substantial cause of action.
In Bagadiya Brothers Pvt. Ltd. (supra) this Court observed as follows :
"7. In view of the aforesaid earlier decisions of this Court, we are of the opinion that the writ application filed by the writ petitioner herein is very much maintainable in the Original Side Jurisdiction of this Court specially when a substantial part of the cause of action has arisen within the Original Side Jurisdiction of this Court and, therefore, the writ petition should not have been dismissed on the ground of maintainability."
Bearing in mind the aforesaid observation since the first order for imposition of penalty passed by respondent no. 2 is a substantial cause of action and its office falls within the Original Side Jurisdiction of this Court, hence the present writ petition is entertainable in the Original Side.
With regard to the merit of the writ petition, Mr. Majumder, learned advocate appearing on behalf of the petitioners submits that the penalty has been imposed upon the petitioners on the score that at the time of inspection when the delivery man was to leave the godown for delivery about the six numbers of cylinders which were weighed was found underweight and mismatch of stocks. He indicated that at the time of inspection platform type digital weighing scale of least count +/- 10 gms prescribed in the Legal Metrology (Packaged Commodities) Rules, 2011 (hereinafter referred to as 'Rules, 2011') was not used though the same was available in the godown 4 rather hand check electronic device was used by the inspecting team for weighing the cylinders. Further the weight of the cylinders were weighed one digit after the decimal and not weighing it till two digit after decimal which could have shown that the cylinders were not beyond the permissible limit. The Rules, 2011 provides that the maximum permissible errors on net quantity declared by weight or volumn is 150 g or ml and +/- 10 g which would permit for error upto 140 to 160 g or ml. Since the weight was not taken at a platform type digital electronics device, the same has resulted in a faulty calculation. There is no case of the respondent-Oil Corporation that the cylinders were tampered by the petitioners. Therefore, without any fault on the part of the petitioners they have been penalized which is an arbitrary action on the part of the Oil Company. Where the process of decision- making is faulty and proper reasoning is not recorded for arrival at a conclusion, the action of the Oil Corporation falls under the category of arbitrariness which has precisely happened in the case at hand. To buttress his contention he relies on a decision of the Hon'ble Supreme Court in the case of Asha Sharma versus Chandigarh Administration and Ors. reported in (2011) 10 Supreme Court Cases 86. Furthermore he submits that the allegation of mismatch of stocks is due to the reason that previous to the date of inspection SDMS was not working, for which reason the stocks posting could not be done properly. Therefore, both the aforesaid allegations against the petitioners/distributors are not tenable. In light of his aforesaid submission he prays for an interim order of stay restraining 5 respondent nos. 1 to 4 from realising or taking coercive action in the matter of realising the penalty from the writ petitioners.
In reply to the contention raised on behalf of the petitioners, Mr. Amit Kumar Nag, learned advocate for the respondent-Indian Oil Corporation Limited submits that the writ petition is not maintainable since the partnership firm has not been impleaded as a party. Further although in the writ petition it is stated that the petitioners have been authorised by the other partners but in the affidavit nothing has been mentioned of such authorisation.
Referring to Chapter 1 of the Marketing Discipline Guidelines, 2022 for the LPG Distributorship as well as Clause 1.4(c ) he submits that it is the duty of the distributor to check the correctness of net weight on the platform type digital weighing scale of least count +/- 10 gms before the cylinders are taken out for delivery. Such exercise was never undertaken by the petitioners. At the time of inspection variance in the weight of six number of cylinders were found being weighed by hand electronic device which is provided to the delivery man for delivery at the end of the customers. No objections were raised with regard to the weighing machine either at the time of inspection or filing of the show cause. The distributor in whose presence the cylinders were weighed and checked also did not insist for weighing the cylinders on the platform type digital weighing scale. The petitioners in the writ petition have not made a single statement that prior to loading the cylinders on the delivery van the correctness of the weight of the cylinders were checked at the end of the distributor. Thus there was 6 manifest violation of the Marketing Discipline guidelines for LPG Distributorship. He further submits that the reasons of mismatch in the stocks as provided by the petitioners is not tenable since the distributor manually received AC 4 and ERV which has been confirmed by the Field Officer. He further submits that the inspection was done en route and as such there was no scope to weigh the cylinders in the platform type digital weighing scale. In light of his aforesaid submissions, he prays that the writ is short of merit and the petitioners should not be favoured with an interim order. He seeks to file affidavit-in-opposition to the writ petition.
Mr. Majumder, learned advocate for the petitioners seeks leave to add the partnership firm as well as all the partners as petitioners.
Leave granted to add the partnership firm M/s. Jiban Jyoti and the remaining partners as petitioners. The added petitioners are directed to furnish Vakalatnama on their behalf.
The principal challenge raised in the present writ petition is with regard to the determination of underweight of the cylinders by the Oil Corporation at the time of inspection. It is not in dispute that the six number of cylinders which were allegedly found to be underweight was weighed by hand held electronic device scale. As per the marketing discipline guidelines a distributor is to weigh the correctness of the cylinder on the platform type digital weighing scale as prescribed in the Legal Metrology (Packaged Commodities) Rules, 2011. It has been consistently argued on behalf of the petitioners that such instrument was not used at the time of inspection for weighing the cylinders which led to a discrepancy in 7 the weight. On the contrary it is argued on behalf of the Oil Corporation that since the inspection was held en route the platform type digital weighing scale could not be availed of. Inspection of LPG Distributorship annexed at page 78 shows that such inspection time in godown was made at 9 A.M. till 10.30 A.M. Be that as it may, whether the cylinders were weighed en route or in the godown are facts which needs further examination. Fact remains that the cylinders were not weighed in the platform type digital weighing scale. Thus, this Court finds that an arguable case has been made out by the petitioners in this regard. The allegation with regard to the discrepancies in maintaining of the stocks or mismatch of the stocks or on the contrary alleged arbitrariness of respondents as urged on behalf of the petitioners relying on Asha Sharma (supra) are to be examined after the affidavit-in- opposition is filed on behalf of the respondent-Indian Oil Corporation.
Let affidavit-in-opposition be filed by the respondents-Indian Oil Corporation within two weeks from date; reply thereto, if any, be filed by the petitioners within one week after ensuing Summer Vacation.
In view of the above, the respondents-Indian Oil Corporation are restrained from realising the balance penalty amount of Rs. 1,43,102/- for a period of eight weeks from date or until further orders whichever is earlier.
Parties shall be at liberty to pray for extension or modification or vacating of the order upon notice.
Matter to appear in the list on 17th June, 2024.
8All concerned parties shall act in terms of the copy of the order downloaded from the official website of this Court.
(BIVAS PATTANAYAK, J.) TR/