Allahabad High Court
M/S Agarwal Brothers Thru. Prop. Manju ... vs Indian Oil Corp. Ltd. Mumbai & Ors. on 21 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2119
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 3 Case :- MISC. BENCH No. - 31923 of 2019 Petitioner :- M/S Agarwal Brothers Thru. Prop. Manju Devi Respondent :- Indian Oil Corp. Ltd. Mumbai & Ors. Counsel for Petitioner :- Tushar Hirwani,Amrendra Singh Counsel for Respondent :- Manish Jauhari Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Nirmal Seth, learned Senior Advocate assisted by Sri Tushar Hirwani, learned counsel for the petitioner and Sri Raghvendra Singh, learned Senior Advocate assisted by Sri Manish Jauhari, learned counsel for the respondents.
By means of the present writ petition, the petitioner has prayed for the following main relief:-
"(i) Issue a writ order or direction in the nature of certiorari thereby quashing termination order dated 11.11.2019 (Contained as Annexure No.1 to this writ petition) terminating the dealership of the petitioner together with the fact finding letter dated 01.06.2017 (Annexure No.6) and the show cause notice dated 06.11.2017 (Condtained as Annexure No.8 to this writ petition), in the interest of justice."
Sri Nirmal Seth, learned Senior Advocate while pressing the reliefs sought in the writ petition submitted that the Indian Oil Corporation Ltd. (in short 'Corporation')-opposite party No. 1 by way of dealership agreement, has granted a retail outlet of petroleum products to the petitioner at Jiyamau, Lucknow in the name and style M/S Agarwal Brothers Thru. Prop. Manju Devi.
On 01.05.2017, an inspection was made of the retail outlet of the petitioner, at Jiyamau, Lucknow and the inspection report was prepared, wherein it was reported that Machine No. 2 Pulsar soldering of Nozzle No. 3 was not proper. However, in the inspection, neither any short supply was found nor seals of the wights and measurement department were reported to be broken nor any chip was reported to be installed.
Sri Nirmal Seth, learned Senior Advocate further submitted that prior to inspection on 01.05.2017, the authorities of Indian Oil Corporation on 13.04.2017 carried out Stamping of the Dispensing Unit in the presence of the officials of the Weight and Measurement Department as well as OEM (Original Equipment Manufacturer) Service Engineer. During the Stamping procedure, no irregularity was found in dispensing unit. It is further submitted that in the presence of the Company Fitter, the inspection was done on 13.04.2017 and no soldering was found.
Sri Nirmal Seth, learned Senior Advocate further submitted that on the basis of the inspection report dated 01.05.2017, the Corporation issued a fact finding letter dated 01.06.2017 to the petitioner inter alia stating therein that the petitioner has violated the Guidelines of the Corporation known as Marketing and Discipline Guidelines, 2012 (in short 'Guidelines of 2012') and the dealership agreement. To the fact finding report, the petitioner submitted the reply, however, ignoring the reply of the petitioner, a show-cause notice dated 06.11.2017 was issued to the petitioner. The charges mentioned in the show cause notice read as under:-
"(1) Soldering in Pulsar, nozzle no.3, was not proper which is a critical irregularity. (Violation of clause 5.4.4 of Marketing Discipline Guidelines (MDG) 2012 (Additional/unauthorized fittings/gears found in Dispensing unit/tampering with dispensing unit).
(2) Stock Reconciliation: Stock reconciliation could not be done as the DSR of 2016-17 was not available at the RO, which is a major irregularity. (Violation of clauses 5.1.12 of MDG 2012)."
Thereafter, the petitioner submitted his reply to the show-cause notice inter alia stating therein that on the basis of the inspection report dated 01.05.2017, a complaint was lodged under Section 200 of Cr.P.C. and under Section 26 of the Legal Metrology Act, 2009 against the petitioners' firm before the ACJM-1, Lucknow.
On 25.10.2017, the petitioner moved an application before the ACJM-1, Lucknow praying therein that the pulsar/device obtained from the retail outlet of the petitioner should be got tested by an independent agency approved by the State.
The ACJM-1, Lucknow vide order dated 18.01.2018 directed that the pulsar in question should be sent to Forensic State Laboratory, U.P., Lucknow (in short 'FSL') of testing.
On 23.08.2018, FSL gave its report inter alia stating therein that no electronic device or tampering has been found in the said pulsar. The said fact was intimated to the Corporation vide letter dated 28.08.2018.
Sri Nirmal Seth, learned Senior Advocate vehemently submitted that the Authority concerned of the Corporation terminated the dealership of the petitioner without taking into consideration the report dated 23.08.2018, passed by FSL, so in view of the said facts and having no other remedy left, the petitioner approached this Court by means of the Writ Petition No. 34846 (M/S) of 2018 (M/S Agarwal Brothers Thru. Prop. Manju Devi v. Indian Oil Corporation), which was disposed of by means of the order dated 04.12.2018, the same reads as under:-
"Supplementary affidavit filed by the petitioner is taken on record.
Heard learned counsel for the parties.
The petitioner has approached this Court challenging the fact finding letter dated 01.06.2017 as well as show cause notice dated 06.11.2017 (contained in Annexure Nos.5 & 7) to this writ petition.
The facts leading to the present petition are that in the month of April 2017 a series of raids were conducted by the Special Task Force (STF) all over the State of U.P. on petrol pump retail outlets of the petrol pump. In pursuance of the said State wide drive, on 1.5.2017, an inspection was also conducted at the retail outlet of the petitioner at Jiamau, Lucknow.
Learned counsel for the petitioner submits that there are as many as 8 petrol/diesel dispensing machines. The allegation made in the report against the petitioner is to the effect that some shouldering was done in the Nozzle of Machine No. 2. It has also been urged that no extra chip was found in any of the machine, no seal was found broken and no shortage in dispensation of fuel was found as alleged by the respondents.
Learned counsel for the respondents on the other hand has vehemently argued that the present writ petition assailing the show cause notice is not maintainable as it is open for the petitioner to give a detailed response to the said show cause notice and the competent authority would pass the final order in the matter. He also pointed out that the department has already obtained a report in this regard from the Original Equipment Manufacturer, Engineer, which has already been indicated at page No.59 of the writ petition.
At this stage, learned counsel for the petitioner submits that on the direction of Additional Chief Judicial Magistrate before whom proceedings were initiated, by the Legal Metrology Department, has by its order dated 18.1.2018 directed that pulsar in question be sent to Forensic State Lab for testing. The Forensic State Science Laboratory has given its report on 23.8.2018 but the same is not being taken into consideration by the respondents, which would be unjustified and would result in grave injustice.
The petitioner confines his relief only to the extent that the respondents may be directed to consider the aforesaid report dated 23.08.2018 before taking any final decision in the matter as there is apprehension in the mind of the petitioner that the said report may not be considered by the respondents while passing the final order and therefore, they have approached this Court under Article 226 of the Constitution of India.
Considering the peculiar facts and circumstances of the case, it is hereby provided that while passing final order pursuant to the show cause notice dated 06.11.2017, the respondents shall also take into account the report of Forensic Science Laboratory, Uttar Pradesh Lucknow dated 23.08.2018, referred to above. It is clarified that while passing the order, the respondents shall follow the due procedure and principles of natural justice.
Subject to the aforesaid observations and directions, the writ petition is disposed of finally."
Sri Nirmal Seth, learned Senior Advocate further submitted that however ignoring the direction given by this Court vide order dated 04.12.2018, the Competent Authority of the Corporation terminated the dealership of the petitioner firm vide order dated 24.05.2019.
Aggrieved, by the order dated 24.05.2019, the petitioner approached this Court by means of the Writ Petition No. 17781 (M/B) of 2019 (M/S Agarwal Brothers Thru. Prop. Manju Devi v. Indian Oil Corporation), which was allowed by means of the order dated 24.06.2019. The order dated 24.06.2019 reads as under:-
"Heard Sri N.K.Seth, learned Senior Counsel assisted by Amrendra Singh, learned counsel for the petitioner and Sri Manish Jauhari,learned counsel for opposite parties/ Indian Oil Corporation.
By means of present writ petition, the petitioner has prayed for quashing of the order dated 24.5.2019 (Annexure no.1) terminating the dealership of the petitioner together with the fact finding letter dated 1.6.2017 (Annexure no.8) and show cause notice dated 6.11.2017 (Annexure no.10).
Sri N.K.Seth, learned Senior Counsel appearing for the petitioner submits that petitioner had been granted dealership by Indian Oil Corporation for running the retail outlet of petroleum products at Jiyamau, Lucknow and the same is being operated in the name and style of M/s Agarwal Brothers.
On 1.5.2017, an inspection was made of the retail outlet of the petitioner at Jiamau, Lucknow and an inspection report was prepared wherein it is stated that in Machine No.2 Pulsar soldering of nozzle no.3 was not proper. However, in the inspection neither any short supply was found nor seals on the machines were reported to be broken nor any chip was reported to be installed.
Sri N.K. Seth, learned counsel for the petitioner further submits that prior to the inspection on 1.5.2017, on 13.4.2017 in the presence of the officials of the Weights and Measurement Department as well as OEM (Original Equipment Manufacturer) Service Engineer during 'STAMPING' procedure no irregularity was found in the Dispensing Unit.
Thereafter, on the basis of the inspection report dated 1.5.2017, the Corporation issued a fact finding letter dated 1.6.2017 to the petitioner that he has committed violation of the Marketing Disciplinary Guidelines,2012 and the dealership agreement.
After receiving the same, the petitioner submitted his reply on 19.6.2017 inter alia stating therein no extra chip were found in any of the machines, seals of all machines were found in-tact, delivery was checked and was found in order.
Thereafter, on 6.11.2017, a show cause notice (Annexure no.10) was served on the petitioner calling for his explanation as to why action be not taken against him for breach of the terms and conditions of the dealership agreement and for causing prejudice to the interest and good name of the Corporation. An addendum to the show cause notice was served on the petitioner on 14.11.2017. As the petitioner was not feeling well so he wrote a letter on 18.12.2017 seeking time to submit reply.
Sri N.K. Seth, learned counsel for the petitioner further submits that on the basis of the inspection report dated 1.5.2017, a complaint was also lodged under Section 200 Cr.P.C. and under Section 26 of the Legal Metrology Act, 2009 against the petitioner's firm before A.C.J.M.-1 Lucknow. On 25.10.2017, the petitioner moved an application before A.C.J.M.-1 Lucknow praying that the pulsar/device obtained from the retail outlet of the petitioner should be got tested by an independent agency approved by the State. The A.C.J.M.-1 Lucknow vide order dated 18.1.2018 directed that pulsar in question should be sent to Forensic Science Laboratory U.P. Lucknow (herein after referred to as the 'FSL') for testing. On 23.8.2018, the FSL gave its report inter alia stating therein that no electronic device or tampering has been found in the said pulsar. The said fact was intimated by the petitioner vide letter dated 28.8.2018 to the Corporation. However the respondent was adamant to terminate the dealership of the petitioner without taking into consideration the report dated 23.8.2017 submitted by FSL.
In view of the aforesaid factual background, the petitioner approached this Court by filing Writ Petition No.34846 (MB) of 2018 (M/S Agarwal Brothers Vs. Indian Oil Corporation and others), and after hearing learned counsel for the parties, vide order dated 4.12.2018 the said writ petition was disposed of. The relevant portion of the order reads as under:-
"Considering the peculiar facts and circumstances of the case, it is hereby provided that while passing final order pursuant to the show cause notice dated 06.11.2017, the respondents shall also take into account the report of Forensic Science Laboratory, Uttar Pradesh Lucknow dated 23.08.2018, referred to above. It is clarified that while passing the order, the respondents shall follow the due procedure and principles of natural justice."
The impugned order terminating the dealership was thereafter issued on the petitioner on 24.5.2019.
Sri N. K. Seth, learned counsel for the petitioner submits that although in the impugned order there is narration in respect to order passed by this Court and it is also mentioned that as far as report dated 23.08.2018 of FSL is concerned, report of OEM has been taken as per MDG, 2012 which provides that in case of tampering with dispensing units, views and independent opinion of the original equipment manufacturer would be obtained.
It is submitted that despite the specific directions given by this Court vide its order dated 4.12.2018 to take into account the report dated 23.8.2018 submitted by FSL, no reasons have been assigned by opposite party no.2 as to under what circumstances he disagreed with the report of FSL. It is further submitted that impugned order dated 24.5.2019 is non-speaking and the same is in violation of principles of natural justice as well as in contravention with the direction given by this Court vide order dated 4.12.2018 passed in Writ Petition No.34846 (MB) of 2018 and as such the same is liable to be set aside.
The relevant portion of the impugned order reads as under:-
"Your reply to the fact finding letter and the FSL report has been carefully considered, however, the same has not been found satisfactory by the Competent Authority due to the reasons given below :-
1. During inspection, in the pulsar unit of Nozzle No.3 of Midco DU Number 11 GC 2165V, abnormal soldering was found. This irregularity has been recorded in the inspection report on 01.05.2017 duly signed by your representatives. OEM lab report dated 25th September 2017 has corroborated the same and confirmed that the pulsar is not found as per MIDCO standard design and has been visibly tampered. Therefore, your submission at point no.a above is not tenable.
2. As per the provisions of the dealership agreement, dealer is required to ensure that any repair/maintenance of the outfit at the RO premises is carried out either in his presence or his authorized representative. Since the RO premises are in the custody of the dealer, any tampering with the pulsar unit is not possible without the knowledge and involvement of the dealer. Certainly none other than the dealer is going to be benefited by the tampering with the pulsar. This irregularity of tampering in pulsar has been done without any permission and knowledge of the Corporation. Therefore, your submission of not having any technical knowledge of the soldering in pulsar at b above is not acceptable.
3. Even though the W&M seal was found intact and the delivery was found to be correct, matter of the fact is that since soldering in the pulsar was found which was not part of original equipment as confirmed by OEM in the inspection and the same has been recorded in the inspection report duly signed by your representative. Even though the W&M seal was found intact and the delivery was found to be correct, the soldering in pulsar was found during inspection as per OEM test report dated 25.09.2017. It has been confirmed that the Pulsar is not found as per Midco standard design and has been visibly tampered. Therefore, your submission that W&M seat and delivery was found ok. At C is not tenable.
4. DSR of 2016-17 could not be produced by the staff available at the RO during the inspection and therefore your submission at d is incorrect.
5. As far as report of Forensic Science Laboratory, Uttar Pradewsh (FSL), dated 23.08.2018 is concerned, report of OEM has been taken as per MDG, 2012 which provides that in case of tampering with dispensing units, views and independent opinion of the original equipment manufacturer would be obtained."
Sri Manish Jauhari, learned counsel for the opposite parties, at the very outset has raised a preliminary objection that against the impugned order dated 24.5.2019 petitioner has got two remedies, namely;
(1) he may file an appeal under clause 8.9 of the Marketing Disciplinary Guidelines (2) he may file an application for arbitration.
Accordingly, it is submitted by Sri Manish Jauhari, learned counsel for the opposite parties that the writ petition is liable to be dismissed.
Sri N.K. Seth, learned counsel for the petitioner while rebutting the aforementioned contention submits that since the impugned order is contrary to the directions issued by this Court vide order dated 4.12.2018 with regard to consideration of the report dated 23.8.2018 of FSL and also the impugned order having been passed in violation of principles of natural justice, the alternative remedy of filing of appeal under clause 8.9 of the Marketing Disciplinary Guidelines would not be a legal impediment so as to bar the filing of present writ petition.
It is further submitted that so far as the arguments raised by learned counsel for opposite party that petitioner has got remedy by way of arbitration, the same is not an efficacious remedy in view of the judgement dated 30.1.2019 delivered by a Division Bench of this Court in Writ Petition No.27043(MB) of 2018 (M/S Chaudhary Filling Point, Kazipur and another Vs. State of U.P. and others) .
We have heard learned counsel for the parties and gone through the record.
So far as the arguments raised by Sri Manish Jauhari, learned counsel for the opposite parties that the petitioner has got remedy to file an appeal under Clause 8.9 of the Marketing Disciplinary Guidelines is concerned, from a bare perusal of the impugned order the position which emerges is that while passing the impugned order, the opposite party no.2 although has taken note of the fact that this Court vide its order dated 4.12.2018 had directed the Corporation to consider the report dated 23.8.2018 of FSL which is an independent agency; however, while passing the order impugned no adequate reason has been assigned as to under what circumstances the authority disagreed with the report dated 23.8.2018 of FSL as such the impugned order is clearly in contravention of the order dated 4.12.2018 passed by this Court.
It is well settled that all the subordinate courts, tribunals and authorities are bound by the decisions and directions of this Court. In this regard reference may be had to the judgement of Hon'ble the Apex Court in the case of M/s. East India Commercial Co. Ltd. Calcutta and another vs. Collector of Customs, Calcutta (AIR 1962 SC 1893), wherein it has been held as under :
"Under Art. 215, every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction. Under Art. 227 it has jurisdiction over all courts and tribunals throughout the territories in relation to which it exercise jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by that court and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working : otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer.
So the law declared by the highest court in the State is binding on authorities or tribunals under its superintendence, and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding. If that be so, the notice issued by the authority signifying the launching of proceedings contrary to the law laid down by the High Court would be invalid and the proceedings themselves would be without jurisdiction."
Further, in the case of Sher Bahadur Singh Vs. U.P. Forest Corporation Lucknow and others, 2010 (28 ) LCD 1752 has held as under:-
"So far as the submission of respondents counsel that the writ petition is not maintainable, I do not find any reason to relegate the matter to Labour Court keeping in view the previous litigations in this Court as well as the Apex Court. According to petitioners counsel, the judgment has been affirmed by Hon'ble Supreme Court. Once the litigants approach this Court with the allegation that the judgment of this Court has not been complied with in letter and spirit, then it shall neither be just and proper to relegate the matter to Labour Court. By catena of judgment of Hon'ble Supreme Court, it has been held that the alternative remedy is not bar and Court in appropriate cases, may entertain the writ petition to impart justice to litigants. Keeping in view the earlier litigation, adjudicated or pending in this Court, it shall not be appropriate to relegate the matter to Labour Court. Accordingly, the objection of respondents with regard to maintainability is rejected."
For the aforesaid reasons, the contention of learned counsel for the opposite parties that petitioner has got an alternative remedy to file an appeal under clause 8.9 of the Marketing Disciplinary Guidelines would not be a bar in the way of the petitioner in approaching this Court by filing the present writ petition.
So far as the other argument raised by learned counsel for the opposite parties that petitioner has got the remedy by way of arbitration is concerned, the same also has no force in view of the decision of coordinate Bench of this Court passed in Writ Petition No.27043(MB) of 2018 ( M/S Chaudhary Filling Point, Kazipur and another Vs. State of U.P. and others) wherein it has been held as under:-
"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."
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."
For the foregoing reasons and also the law laid down by Hon'ble 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 which have been followed by a coordinate Bench of this Court in its order dated 30.1.2019 passed in Writ Petition No.27042 (MB) of 2018 ( M/S Chaudhary Filling Point, Kazipur and another Vs. Stat of U.P. and others), the objections in questions raised by learned counsel for opposite parties are hereby rejected.
Sri Manish Jauhari, learned counsel for the opposite parties has not disputed the fact that no reasons have been given by opposite party no.2 in the impugned order dated 24.5.2019 as to under what circumstances he disagreed with the report dated 23.8.2018 of FSL which is an independent agency.
Accordingly in view of the aforestated reasons, the writ petition deserves to be allowed.
The order dated 24.5.2019 (Annexure no.1) passed by opposite party no.2 is hereby quashed and the matter is remanded to said authority to decide a fresh with a direction that the petitioner after receiving a certified copy of this order shall submit his reply within a period of two weeks raising all pleas which he has raised in the present writ petition against the impugned order dated 24.5.2019, and after receiving the same the opposite party no.2 shall decide the same within a further period of four weeks keeping in view of the directions given by this Court in the order dated 4.12.2018 passed in Writ Petition No.34846 (MB) of 2018. The respondent shall also take into account the report of FSL dated 23.8.2018 and pass a speaking order after giving personal hearing to the petitioner.
For a period of eight weeks or till passing of the fresh order whichever is earlier the petitioner's supply and operation of petrol pump shall be restored.
With the above directions, the writ petition is allowed."
It is further submitted that thereafter, the impugned order dated 11.11.2019 has been passed by the opposite party No. 3-Chief Divisional Retail Sales Manager, Indian Oil Corporation Limited ignoring the directions given by this Court in earlier orders, as stated hereinabove.
Sri Nirmal Seth, learned Senior Advocate in order to elaborate his argument submitted that while passing the impugned order dated 11.11.2019, the opposite party No. 3 did not consider the directions given by this Court earlier in regard to consideration of FSL report, as while passing the impugned order, no cogent reason has been given by the opposite party No. 3 on FSL report, as such the impugned order on the point in question is a non-speaking one.
In support of his arguments, Sri Nirmal Seth, learned Senior Advocate placed reliance on the judgment given by the Apex Court in the case of Priya Gupta and another v. Additional Secretary, Ministry of Health and Family Welfare and others reported in (2013) 11 SCC 404, relevant para of the same is quoted below:-
"9. The facts which will weigh with the Court while considering acceptance of an apology are the contemptuous conduct, the extent to which the order of the Court has been violated, irresponsible acts on the part of the contemnor and the degree of interference in the administration of justice, which thereby cause prejudice to other parties. An apology tendered, even at the outset, has to be bona fide and should be demonstrative of repentance and sincere regret on the part of the contemnor, lest the administration of justice be crudely interfered with by a person with impunity. The basic ingredients of the rule of law have to be enforced, whatever be the consequence and all persons are under a fundamental duty to maintain the rule of law. An apology which is not bona fide and has been tendered to truncate the process of law with the ulterior motive of escaping the consequences of such flagrant violation of orders of the court and causes discernible disrespect to the course of administration of justice, cannot be permitted. The court has to draw a balance between cases where tendering of an apology is sufficient, and cases where it is necessary to inflict punishment on the contemnor. An attempt to circumvent the orders of the court is derogatory to the very dignity of the court and administration of justice. A person who attempts to salvage himself by showing ignorance of the court's order, of which he quite clearly had the knowledge, would again be an attempt on his part to circumvent the process of law. Tendering a justification would be inconsistent with the concept of an apology. An apology which is neither sincere nor satisfactory and is not made at the appropriate stage may not provide sufficient grounds to the court for the acceptance of the same. It is also an accepted principle that one who commits intentional violations must also be aware of the consequences of the same. One who tenders an unqualified apology would normally not render justification for the contemptuous conduct. In any case, tendering of an apology is a weapon of defence to purge the guilt of offence by the contemnor. It is not intended to operate as a universal panacea to frustrate the action in law, as the fundamental principle is that rule of law and dignity of the court must prevail."
Sri Nirmal Seth, learned Senior Advocate further submitted that in identical circumstances, the Corporation did not take into consideration the report of FSL and has cancelled the dealership of the retail outlet known as M/S Chaudhary Filling Point. Aggrieved by the same, M/s Chaudhary Filling Point approached this Court by means of the Writ Petition No. 27043 (M/B) of 2018 (M/s Chaudhary Filling Point v. State of U.P.), which was allowed by the Division Bench this Court vide order dated 30.01.2019 and thereby quashed the order of termination as well as the appellate order. In support of his argument, Sri Nirmal Seth, learned Senior Advocate placed reliance on the following paras of the order dated 30.01.2019:-
"Now, we proceed to examine the validity of the order of termination and the appellate order.
The aforesaid MDG-2012 classifies three kinds of irregularities, which can result in appropriate penal action i.e., critical irregularity (8.2), major irregularity (8.3) and minor irregularity (8.4). The violation of clause 5.1.4 would attract critical irregularity (8.2 (iv)). Refusal by the dealer to allow drawl of sample or carry out inspection and non-availability of reference density at the time of inspection are classified as major irregularities. Major irregularity would attract suspension of sales and supplies for 15 days for the first irregularity, 30 days for the second irregularity and would invite termination of dealership, if such offences are committed for the third time. Poor housekeeping, driveway salesmen at the ROs not in uniform/wearing badges are classified as minor irregularities, which would attract warning and guidance in the first instance, imposing of fine of Rs.10,000/- on second instance and Rs.25,000/- per irregularity on occurrence of third instance onwards.
A perusal of the record shows that on 2.6.2017 itself, the inspection of the Dispensing Units was conducted by the Service Engineer of Original Equipment Manufacturer (OEM) and a report dated 2.6.2017 regarding the intactness of all seals and proper working of the Dispensing Units (DUs) was issued and no irregularity was detected. In contrast, on the same day, the joint inspection was held and a report dated 2.6.2017 was prepared, which are in conflict with each other.
A perusal of the termination order dated 14.7.2017 reveals that the termination of the petitioner's petrol pump has allegedly been done as per clause 15,16,19 and 44 read with clause 58 of the dealership agreement dated 12.9.2012. However, a mere reading of clause 15,16,19 and 44 reveals that these clauses, in general, pertain to the requirements of the dealer taking care of the retail outlet as a prudent businessman and dealer is to be held responsible for all losses. Clause-16 of the dealership agreement stipulates that no repairs to the outfit can be done by dealer as he shall not interfere with or attempt to adjust any equipment and should only ensure that the outfit is working in a proper order and deliver full and proper measures at all times. However, no concrete evidence whatsoever was collected to establish the allegations which were levelled in the show cause notice dated 20.6.2017, which is in total breach of clause 5.1.4 and 8.5.2 of the MDG-2012.
Further, the main reason for terminating the dealership of the petitioner has been stated that there was wide publicity in the media pertaining to incidents of short selling of fuel to the consumers. The termination order dated 14.7.2017 reveals that the IOCL has alleged that from the irregularities, only the petitioner was beneficiary but this ground is not substantiated by any documentary evidence as no case of short selling of fuel was found at the petitioner's retail outlet. It is pertinent to add that when the order of termination dated 14.7.2017 was passed, the report of OEMs were not available. The appellate authority in its impugned order had admitted that OEM Gilbarco in its report dated 10.2.2018 have clearly concluded that the pulsar card is working "Normal" and " there is no additional attachment found to alter the delivery". Similarly, the OEM Midco in its report dated 30.4.2018 has reported that the "pulsar card is as per the Midco standard design" and " no physical damage was found on any of the received item" and "no alien or external component/hardware found on any of the received item." In the backdrop of the aforesaid fact, it was observed by the Appellate Authority that "this ground of termination is no more valid."
Here, it is also relevant to point out that a show cause notice dated 16.6.2017 was issued by the Weight & Meteorology Department to show cause as to why a case be not registered under Section 26 and 44 of the Legal Metrology Act to which reply was also tendered by the petitioner. However, the Senior Inspector W & M filed a case no. 1078 of 2017 in the Court of Chief Judicial Magistrate, Barabanki. However, the competent court acquitted the accused and observed that W & M seal was not tampered, and therefore no case under Section 26 and 44 of the Legal Metrology Act is made out. The Appellate Authority has fell into error in not considering this important fact and as such the finding recorded by the appellate authority are not based on correct appreciation of evidence/materials on record and shows that independent application of mind has not been made.
The order of termination has also been attacked with vehemence on the ground of not affording opportunity of oral hearing before passing the said order. There is no denial of the said fact by the IOCL. Surprisingly, the appellate authority has observed that as the termination has been done pursuant to the terms and conditions as laid down in the dealership agreement dated 12.9.2012, therefore, clause 8.6. of the MDG is not applicable. This finding of the Appellate Authority is wholly erroneous and per se bad in law. It is settled principle of law that any order which entails civil consequences, must be in conformity with the principle of natural justice. In D.K.Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259 it has been held that an order involving civil consequences must be made consistently with the rules of natural justice. Clause 8.6 of the MDG-2012 provides in clear words that in case of critical irregularities leading to termination, like that of seal tampering, the Head of the State Office/Regional Office/Zonal Office of the concerned Oil Manufacturing Company or their nominee before recommending/approving the termination of Dealership will provide personal hearing to the signatories of dealership or their nominee.
Principles of natural justice require that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker.
Thus, there is clear non compliance of Clause 8.6 of the MDG by the respondent-authorities. Moreover, the respondents have failed to show any rule or regulation to show that when the dealership is terminated as per terms and conditions of the agreement, provisions of the MDG-2012 would not be applicable. It may be clarified that a perusal of the appellate order would show that the appellate authority has rejected the appeal on the ground that dealership has been terminated as per the terms and conditions of the agreement and as such clause no 8.6 of the MDG is not applicable.
The MDG has been enacted for such dealership agreements as the one involved in the instant case and therefore, we are of the view that these guidelines need to be strictly construed by both the parties. Further any dealership agreement cancelled by the respondent corporation cannot be effected on the basis of dealership agreement itself as the MDG have to be followed while taking recourse to such action. The respondent corporation cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standards or norms which are not irrational or irrelevant. Therefore, respondents cannot be exempted from the application of MDG merely by following the dealership agreement. Surprisingly, the appellate authority while passing the impugned order at some places has taken the shelter of the MDG-2012 in rejecting certain pleas as raised by the petitioner.
It may be observed here that the respondent has departed from the standard norms laid down in the Marketing Discipline Guidelines and the standard norms of natural justice and fair play and such departure was clearly unreasonable and discriminatory. It may be noted that once the manufacturer of the unit calibrates the equipment ensuring proper delivery of the product, the relevant part of the machinery is sealed by the department of legal metrology, after verification of the accuracy. The very purpose of sealing of the equipment by the department of legal metrology is to ensure that the dealer does not tamper with the same.
As seen from the reading of the impugned order, the only reason assigned for being not satisfied with the explanation offered by the petitioner was that there was tampering in the DU and pulsar card contains certain soldering marks. However, what was not considered by the competent authority was that at what point of time this unauthorized tampering/soldering was done in the dispensing unit and how the dealer is manipulating the distribution of fuel. No material, much less credible one has been brought on record by the respondents to disclose the unauthorized access to the equipment by the petitioner. It was specific stand of the petitioner that periodically the Weights and Measurements Department officials inspected the seals and they were found to be intact. Further more, what is the impact on tampering/soldering in delivery unit is not disclosed. How the dealer can manipulate delivery of fuel by inserting such unit is not explained. The only objective of a dealer to tamper with dispensing unit is to manipulate delivery of fuel. In this case, the delivery of fuel was found to be accurate prior to checking of unit and after the checking. Furthermore, the defence of the petitioner that it is possible that the supplier himself might have done soldering while repairing for proper functioning of the unit by supplier himself cannot be brushed aside.
In view of the above, merely on assumptions that the tampering/soldering was found in the delivery unit of the dealer premises, the petitioner dealer cannot be visited with severe consequence of termination of dealership and that too when the OEM report does not support or corroborate the version of the respondents. Thus, the action of the respondent-Corporation, in the facts of this case, in terminating the dealership of the petitioner no.1 on the sole ground that soldering/tampering was found in the Dispensing Units is illegal, unreasonable, excessive and made in arbitrary exercise of power and hence unsustainable, more particularly when performance of the petitioner-dealer all along has been appreciated.
Another point which has been canvassed by the petitioner is that a perusal of the show cause notice dated 16.06.2017 would indicate that the basis for the entire proceedings initiated against the petitioner is the inspection note dated 02.06.2017 and there was no other material before the competent authority to proceed against the petitioner. He has submitted that the inspection note dated 02.06.2017 has been made a sole basis of passing the impugned orders, which was in fact no "actionable evidence", since the allegations contained therein were mere suspicions raised by the authorities and has not been verified by the Experts before the impugned termination order was passed.
We have examined the show cause notice. A perusal of the show- cause notice would indicate that petitioner was asked to reply to the allegations regarding the dispensing Unit of Midco, wherein an extra wire was found as well as the Dispensing Unit of Gilbarco where a soldering was discovered in the Pulsar Card and lastly with regard to the Z-line, L&T wherein tampering were found. Inspection report did not itself make any short selling of fuel by the petitioner and it is an admitted fact that subsequently further examination of the aforesaid facts were conducted by the "Original Equipment Manufacturer" (herein after referred to as OEM), wherein the Expert report did not find any irregularity which could lead to the culpability of the petitioner with regard to the tampering of machine for shot selling of the fuel.
When the findings of the inspection report were subjected to further inquiry and verification by an Expert, it means the respondents should have waited for the results of such Expert's opinion, but they proceeded to initiate proceedings for termination of dealership of the petitioner only on the basis of the Expert's report which in the present set of facts seems was per-mature and arbitrary action on the part of the respondents. The inspection report could not have been made a basis for initiating proceedings against the petitioner, inasmuch as from the said report it could not have been concluded that petitioner was involved in any action which could be said to be infringement of the guidelines with regard to the tampering of the machines and short selling of the fuel.
Had the aforesaid allegations as mentioned in the inspection report dated 02.06.2017 being corroborated by the Original Equipment Manufacturer as provided in Clause 5.1.2(b), 5.1.3 and 5.1.4 and 8.5.2 there could have been some substance in the allegations, for which the respondents could have proceeded against the petitioner, but in absence of any such finding or the report of the OEM, the proceedings initiated against the petitioner were clearly pre-mature and lacking in substance.
It is important to mention that during the pendency of the petitioner's Appeal, the reports of the OEM were received, which finds mentioned in the appellate order, wherein they have stated that the Pulsar Card is working "Normal" and "there is no additional attachment found to alter the delivery" and similarly the OEM and Midco in its report dated 30.04.2018 has concluded /remark that the "Pulsar Card is as per the Midco standard design" and "no physical damage was found on any of the received item"
In these circumstances, the entire inquiry proceedings against the petitioner were vitiated on the ground that the Expert's opinion was obtained subsequent to the order of termination. In the finding, the Appellate Authority has also stated that "this ground of termination is not more valid", but still proceeded to hold the petitioner guilty on the basis of the inspection report. The appellate order is clearly, perverse and irrational in light of the reports submitted by the OEM, wherein they did not confirm any finding as mentioned in the inspection report dated 02.06.2017. Therefore, the termination order also suffers from infirmities and is arbitrary being based on the inspection report which could not have been made the basis of proceedings against the petitioner in absence of any Expert's opinion confirming the said findings. Thus the termination order as well as the appellate order are liable to be set-aside.
As the impugned orders cannot be sustained legally in view of the aforesaid discussion, we are not entering into other aspects of the matter as raised by the parties Counsel.
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.
Parties to bear their own costs."
It is further submitted by Sri Nirmal Seth, learned Senior Advocate that the order passed by the Division Bench of this Court in the case of M/s Chaudhary Filling Point (supra) has not been challenged by the Corporation before any higher forum/Apex Court, as such, the action on the part of opposite party No. 3, thereby terminating the dealership of the petitioner vide order dated 11.11.2019 is liable to be set-aside.
In rebuttal, Sri Raghvendra Singh, learned Senior Advocate submitted that the Corporation has created a forum known as Dispute Resolution Panel (in short 'DRP') as per the Guidelines of 2012 which are effective w.e.f. 08.01.2013 amended on 03.08.2018 in respect to Oil Companies, which are functioning throughout the country.
Sri Raghvendra Singh, learned Senior Advocate further submitted that the DRP is comprised 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."
Accordingly, it is submitted by the learned counsel for the respondents that if the petitioner has any grievance in the matter in question against the order of termination dated 11.11.2019, passed by the opposite party No.3, he should first approach before DRP and avail the remedy.
Sri Raghvendra Singh, learned Senior Advocate submitted that so far as the reliance placed by the learned counsel for the petitioner on the judgment rendered by the Division Bench of this Court in the case of M/S Chaudhary Filling Point (supra) is concerned, the same is not applicable in the facts and circumstances of the present case, as the matter came up for consideration before this Court after the appellate order.
Sri Raghvendra Singh, learned Senior Advocate further submitted that in the case of M/S Chaudhary Filling Point (supra), the Division Bench of this Court has not considered the matter in regard to availability of alternative remedy available to the petitioners before the DRP as per the Guidelines of 2012 which are effective w.e.f 08.01.2013 amended on 03.08.2018 and which has got a binding effect between the parties, as such, the petitioner can not derive any benefit from the order passed by the Division Bench of this Court in the case of M/S Chaudhary Filling Point (supra).
Sri Nirmal Seth, learned Senior Advocate while rebutting the aforesaid contention submitted that looking into the facts and circumstances of the present case particularly the facts to the effect that the Corporation has not adhered to the directions given by this Court vide order dated 04.12.2018, passed in the Writ Petition No. 34846 (M/B) of 2018 and the order dated 24.06.2009, passed in the Writ Petition No. 17781 (M/B) of 2009 as well as the fact that while passing order dated 11.11.2019, the Corporation has ignored the FSL report, which was given by an independent agency and also the order passed by the ACJM-1, Lucknow in the complaint case, the alternative remedy of DRP is not a legal impediment in the way of the petitioner to approach this Court under 226 of the Constitution of India. In support of his arguments, Sri Nirmal Seth, learned Senior Advocate placed reliance on the judgment passed by the Apex Court in the case of Maharashtra Chess Association v. Union of India and others reported in (2019) SCC Online SC 932, relevant paras of which reads as under:-
"22. This argument of the second Respondent is misconceived. The existence of an alternate remedy, whether adequate or not, does not alter the fundamentally discretionary nature of the High Court's writ jurisdiction and therefore does not create an absolute legal bar on the exercise of the writ jurisdiction by a High Court. The decision whether or not to entertain an action under its writ jurisdiction remains a decision to be taken by the High Court on an examination of the facts and circumstances of a particular case.
23. This understanding has been laid down in several decisions of this Court. In Uttar Pradesh State Spinning Co. Limited v. R S Pandey, (2005) 8 SCC 264 this Court held:
"11. Except for a period when Article 226 was amended by the Constitution (Forty-Second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy."
24. The principle that the writ jurisdiction of a High Court can be exercised where no adequate alternative remedies exist can be traced even further back to the decision of the Constitution Bench of this Court in State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 where Justice Vivian Bose observed:
"10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. (Halsbury's Laws of England, 3rd Ed., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
25. The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of granting adequate relief to the Appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter.
26. This brings us to the question of whether Clause 21 itself creates a legal bar on the Bombay High Court exercising its writ jurisdiction. As discussed above, the writ jurisdiction of the High Court is fundamentally discretionary. Even the existence of an alternate adequate remedy is merely an additional factor to be taken into consideration by the High Court in deciding whether or not to exercise its writ jurisdiction. This is in marked contradistinction to the jurisdiction of a civil court which is governed by statute. In exercising its discretion to entertain a particular case under Article 226, a High Court may take into consideration various factors including the nature of the injustice that is alleged by the petitioner, whether or not an alternate remedy exists, or whether the facts raise a question of constitutional interpretation. These factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case."
We have heard leaned counsel for the parties and gone through the record.
So far as the reliance placed by the learned counsel for the petitioner on the judgment passed by the Apex Court in the case of M/S Chaudhary Filling Point (supra) is concerned, the petitioner can not get any benefit from the same as in the said matter, the alternative remedy of appeal available before the DRP was availed and thereafter the writ petition was filed before the Division Bench of this Court.
So far as reliance placed by Sri Nirmal Seth, learned Senior Advocate on the judgment passed by the Apex Court in the case of Maharashtra Chess Association (supra) is concerned, the Apex Court in para- 26 has stated that "these factors are not exhaustive and we do not propose to enumerate what factors should or should not be taken into consideration. It is sufficient for the present purposes to say that the High Court must take a holistic view of the facts as submitted in the writ petition and make a determination on the facts and circumstances of each unique case."
Taking into consideration the judgments relied upon by the learned counsel for the petitioner and the facts stated hereinabove specially the fact that against the impugned order dated 11.11.2019, passed by the opposite party No. 3, the petitioner has got a remedy of appeal before DRP headed by a retired High Court Judge with other members for redressal of his grievances raised in the present writ petition as per the Guidelines of 2012, which are effective w.e.f. 08.01.2013 amended on 03.08.2018, we are of the opinion that the petitioner should avail the said remedy and raise the grievances in the matter in question before DRP.
Further, the grievances raised by the petitioner in the present case should be raised before DRP and the said authority shall consider the same in accordance with law after giving an opportunity to the parties concerned to support and rebut the facts of the case.
In view of the directions given by the Apex Court in the case of Maharashtra Chess Association (supra), the proposition of law which emerges out is to the effect that availability of alternative remedy to a person while entertaining a writ petition under Article 226 of the Constitution of India by this Court is to be considered in the light of the facts and circumstances of a particular case.
The facts on which the present case is based and which relate to FSL report as well as the documents annexed as Annexue No. 22 to the writ petition i.e. the report submitted by the service engineers of Indian Oil Corporation, in which they had stated that on inspection it is only found that there is some soldering on Pulsar and there is no additional device/chip found in the dispensing unit and the petitioner is not found of short supplying the petroleum products and order of ACJM dated 25.03.2019 can be looked into by DRP.
In view of the aforesaid, the argument raised by Sri Nirmal Seth, learned Senior Advocate to the effect that the alternative remedy of appeal before DRP is not efficacious one, has got no force and the same is rejected.
At this stage, Sri Nirmal Seth, learned Senior Advocate has placed the reliance on the judgment passed by the Division Bench of this Court dated 02.04.2019, in writ petition No. 9062 (M/B) of 2019 (M/S RS Filling Station v. Indian Oil Corporation), which on reproduction, reads as under:-
"Heard Sri Sanjay Bhasin assisted by Sri Kshitij Mishra and Sri Ramendra Kumar Yadav learned Counsel for petitioners and Sri Manish Jauhari, learned Counsel for the opposite parties.
Petitioners have approached this Court challenging the order dated 14.03.2019, whereby the Deputy General Manager (Retail Sales) has terminated the 'B' site Retail Outlet Dealership of the petitioner.
Submission of learned Counsel for petitioners is that on 31.05.2017, a team of three members consisting District Supply Officer, Lakhimpur Kheri, Sales Officers, BPCL and Senior Inspector, Metrology had inspected the Retail Outlet of the petitioner. After inspection, the dispensing units and the seal put on at the dispensing units were found to be intact. The inspection team also found that all the dispensing units were delivering the correct volume of MS/ HSD. During inspection, two pulsar cards were taken into custody by the inspection team.
It has also been submitted by the learned Counsel for petitioners that there were 4 dispensing units installed comprising 8 nozzles with 6 pulsar cards. Two nozzles of one dispensing machine were being run on one pulsar card had been under repair since 24.09.2016. The factum of the said 2 nozzles having been shut down for the last 9 months, is not in dispute. The inspecting team took away the pulsar card relating to one machine which had been lying closed for the last 9 months. It has again been submitted that no tampering or breaking of seal was either found by the inspecting team or has ever been reported in the inspection report.
Learned Counsel for petitioners has next submitted that because of removal of 2 pulsar cards, 3 nozzles which were dispensing MS/ HSD became non-functional and were sealed by the inspecting team. The remaining 5 nozzles continued to dispense MS/ HSD and have been doing it since then till the cause of action for filing the present writ petition arisen. Out of 2 pulsar cards which were taken away, one was of MIDCO (OEM) and the other was of Dresser Wayne (OEM). The Dresser Wayne was operational on two nozzles which were dispensing MS (Petrol) and the other was of MIDCO which was dispensing Diesel from one nozzle. The one of Dresser Wayne had been lying shut for the past 9 months because of fault in the dispensing unit. After lapse of one month of the said inspection, an FIR under Section 3/7 of the Essential Commodities Act was lodged by the Supply Inspector on 30.06.2017 after taking permission from the District Magistrate. The Investigating Officer has submitted final report on 26.12.2018 which was accepted by the court below on 06.02.2019. After acceptance of the final report, the petitioners have preferred an application on 18.02.2019 for removing the seal on the nozzles. On the application of the petitioners, the District Magistrate has sought legal opinion and sent a letter to the opposite parties for doing needful. After inspection, the HSD license to sell was suspended by the District Supply Officer on 01.07.2017 on suspicion but the same was revoked on 13.09.2017.
It has been contended by the learned Counsel for petitioners that even during the period of suspension of HSD license, the sale of petrol, which was supplied by the opposite parties, continued for the entire period from 01.07.2017 uninterrupted. The pulsar cards, which were taken away by the inspection team on suspicion, were handed over to the opposite parties on 23.11.2017 and the Indian Oil Corporation had handed over one card of MIDCO to the OEM for testing and the other card to the Dresser Wayne (OEM). On the basis of the report of MIDCO dated 15.06.2018, a show cause notice was issued on 30.08.2018 to which the petitioner has tendered his reply on 05.10.2018. Thereafter without considering the reply of the petitioner and also without providing adequate opportunity of hearing to the petitioner, the impugned order has been passed, which is illegal and arbitrary.
Sri Manish Jauhari, learned Counsel for opposite parties while opposing the writ petition has submitted that the petitioners have an alternative remedy of filing an appeal under the provisions of Para 8.9 of the Marketing Disciplined Guidelines-12 as amended from time to time within a period of 30 days from the date of issuance of the impugned order.
Learned Counsel for the petitioner has submitted that he is ready to prefer an appeal along with an application for interim relief and prays that he may be granted protection only by staying the impugned order till disposal of interim relief application only in other words, the status quo existing at the time of passing of the impugned order may be directed to be maintained by the parties.
We have considered the submissions of learned Counsel for the parties and perused the record.
It is an admitted position that there is a provision of appeal under Para 8.9 of the Marketing Disciplined Guidelines-12 as amended from time to time. Hence, it is open for the petitioners to prefer an appeal before the Appellate Authority under Para 8.9 of the Marketing Disciplined Guidelines-12 within a period of 30 days from the date of issuance of impugned order along with an application for interim relief.
In case such an appeal is filed along with an application for interim relief, we hope and trust that the Appellate Authority shall examine the petitioners' application for interim relief and decide the same as also the appeal in accordance with law.
However, considering the peculiar facts of the case, it is provided that till disposal of the interim relief application, the operation and implementation of order dated 14.03.2019 terminating 'B' site Retail Outlet Dealership of the petitioners shall remain in abeyance and the petitioners be allowed to operate its dispensing unit of 'B' site Retail Outlet till then.
With the aforesaid observations/ directions, the writ petition is disposed of."
On the basis the judgment dated 02.09.2019, it is submitted that if the petitioner is relegated to avail the remedy of appeal before DRP then in that circumstance, the benefit as given by a Division Bench of this Court in the case of M/S RS Filling Station (supra) may also be given to the petitioner keeping in view the fact that the petitioner's unit/outlet is operating.
Sri Raghvendra, learned Senior Advocate while rebutting the said contention submitted that in the case of M/S RS Filling Station (supra), the impugned order was passed without providing any opportunity to the petitioner and without considering the reply, whereas in the present case, the petitioner was provided the opportunity.
Sri Nirmal Seth, learned Senior Advocate, in rebuttal of the submissions of Sri Raghvendra Singh, learned Senior Advocate once again placed reliance on the judgment of the Apex Court passed in the case of Priya Gupta (supra) and submitted that while passing the impugned order, the opposite party no.3 has not taken into consideration the directions given by this Court in earlier judgments and also ignored the report of FSL. It is also stated that the reasons, that in what circumstances, the FSL report is not binding have not been given by the Corporation and in this regard, the order dated 02.09.2019, passed by the opposite party No. 3 is silent, as such the petitioner is entitled for the relief as prayed for in the writ petition.
It is not disputed by learned counsel for the parties that the order dated 02.04.2019, has not been challenged before any high Court/forum and the same has attained finality.
The Apex Court in the case of Rajasthan Public Service Commission and anr. vs. Harish Kumar Purohit and ors. (2003) 5 SCC 480 held that "a bench must follow the decision of a coordinate bench and take the same view as has been taken earlier. The earlier decision of the coordinate bench is binding upon any latter coordinate bench deciding the same or similar issues."
Further, the Apex Court in the case of Sant Lal Gupta and ors. vs. Modern Co-operative Group Housing Society Ltd. and ors. (2010) 13 SCC 336 held that "a coordinate bench cannot comment upon the discretion exercised or judgment rendered by another coordinate bench of the same court. The rule of precedent is binding for the reason that there is a desire to secure uniformity and certainty in law. Thus, in judicial administration precedents which enunciate rules of law forum the foundation of the administration of justice under our system. Therefore, it has always been insisted that the decision of a coordinate bench must be followed". (Vide Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel and ors. AIR 1968 SC 372).
Accordingly, taking into consideration the order dated 02.04.2019, passed by the Coordinate Bench of this Court, which has attained finality as admitted by the learned counsel for the parties and the law laid down by the Apex Court in the case of Rajasthan Public Service Commission (supra) and the fact that prior to passing the impugned order, petitioner firm was operating as well as the fact that the petitioner has remedy of appeal against the impugned order dated 11.11.2019 before DRP, without commenting anything on the merits of the case, we feel it appropriate that with some protection the petitioner be relegated to DRP for availing the remedy of appeal against the impugned order dated 11.11.2019.
For the foregoing reasons, the writ petition is disposed of with a direction to the petitioner to file an appeal before DRP within three weeks from the date of receipt of certified copy of this order alongwith an application for interim relief and in case, the petitioner files an appeal alongwith the application for interim relief, the DRP after hearing the parties concerned shall make all endeavour to decide the same expeditiously.
Till the disposal of the application for interim relief, the position which existed prior to passing the impugned order dated 11.11.2019, shall continue i.e. the petitioner is permitted to run the Petrol Pump. No order as to costs.
Order Date :- 21.11.2019/Arun/-