Madhya Pradesh High Court
M/S Kisan Diesel Kendra vs Union Of India on 29 December, 2016
1 Writ Petition No.3185/2009
[M/s Kisan Diesel Kendra through its Proprietor vs. Union of India
and others]
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
WRIT PETITION NO.3185/2009
.........Petitioner: M/s Kisan Diesel Kendra
through its Proprietor
Versus
.......Respondents : Union of India and others
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Shri Amit Lahoti, Advocate for petitioner.
Shri K.N. Gupta, Senior Advocate, assisted by Shri R.S. Dhakad,
Advocate for respondents No.2 and 3.
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Date of hearing : 18/10/2016
Date of order : 29/12/2016
Whether approved for reporting :
ORDER
(29/12/2016) Justice Rohit Arya, Petitioner; a dealer of respondent no.2 Oil Company since the year 1995, has approached this Court challenging the order of termination of retail outlet dealership dated 12/2/2009, Annexure P/1, and appellate order dated 11/6/2009, Annexure P/2, on the ground of adulteration found in HSD sample, which allegedly failed in Marker test.
2. Before adverting to factual matrix in hand, it is considered apposite to state relevant provisions of the Control Order relevant for disposal of this writ petition. The Government of India in exercise of powers under Section 3 of the Essential Commodities 2 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] Act, 1955 passed a Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, which came into existence w.e.f.19/12/2005. The said Order was substituted by the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Amendment Order, 2007, which came into existence w.e.f.12/12/2007 and the same related to certain aspects introducing Marker system by incorporating meaning of words "adulteration - Section 2 (a), authorised officer - Section 2(b), malpractices - Section 2(f), marker - Section 2(f-1), test-kit - Section 2 (m-1) and transporter - Section 2(n)". The Ministry of Petroleum and Natural Gas, Government of India on 15/1/2007 circulated an official communication in the context of amendment to the Marketing Discipline Guidelines, 2005 and stated that the Marker test shall become applicable w.e.f.15/2/2007. Clause 3 of Chapter 12 thereof provides blending of Marker at Depots/Installations, which stipulates in short that the concerned Oil Marketing Company would ensure that any SKO leaving the Marketing Terminal would be blended with the Marker as per recommended dosage. This blending can be carried out either in the storage tanks or at the time of loading the tank lorry before dispatch. After blending the Marker in the tank / tank lorry, sample is to be drawn and tested for the presence of Marker. The dispatch location should maintain record of such blending / testing 3 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] of Marker. Clause 4 thereof provides for testing for Marker at retail outlets by Inspecting Officials, whereunder it is provided that for carrying out the Marker test, the officials will draw samples from the nozzles of the dispensing pumps and Marker test will be carried out using the test kits. The results of the Marker test will be duly recorded which should be signed by the dealer / his representative and the official. Refusal to sign by the dealer / his representative will be treated as an act of offence similar to refusal by dealer to allow drawal of sample and / or carrying out of inspection and appropriate penal action as provided for this offence in MDG, 2005 will be imposed on the dealer.
Marker test has to be carried out on samples drawn from all the tanks/products. In case of the Marker test failing on any of the samples drawn from the RO, the corresponding TT sample(s) retained by the dealer will also be tested for presence of Marker.
Depending on whether TT sample fails or passes, further action shall be taken as laid down in MDG, 2005, as applicable in the case of laboratory test failure. If Marker test of TT sample fails, then no action will be taken against the dealership. Action will be taken against the transporter as per the Transport Discipline Guidelines. However, sales and supplies of MS/HSD at the RO will be discontinued till the product is replaced by the oil company. If the Marker test of TT samples passes, action will be taken against the RO dealership since it is a proved case of adulteration 4 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] with Kerosene.
Chapter 2 deals with Sample Collection and Testing (3-Tier Sampling System) to be followed so as to check at what stage and where adulteration has taken place viz. Either at the depots or during transportation or at the retail outlet. Procedure is provided for drawal of samples under clause 2.2; at supply locations under clause 2.2.1 & at retail outlets under clause 2.2.2, and drawal of samples by dealer / his representative under clause 2.3. Clause 2.5 deals with the procedure of test of samples and consequential action to be taken. Clause 2.9 deals with retention of samples; clause 2.9.1 at supply locations, clause 2.9.2 at retail outlets and clause 2.9.3 at Divisional / Territory / Regional Office of the Oil Company. Clause 2.10 deals with sample testing and results.
Industry Transport Discipline Guidelines have also been provided, whereunder Clause 4.1.4 deals with retained tank lorry samples, Clause 4.1.5 Marker Testing, Clause 4.2 procedure for dealing with the suspected irregularities and Clause 4.5 Testing of "Retained Tank Lorry Samples" at lab; Clause 4.5.1 testing for specifications and Clause 4.5.2 testing for Marker. For ready reference the aforesaid Clauses are reproduced below:-
"4.1.4 Retained Tank Lorry samples The dealer/dealer's representative shall draw 4x1 liters of MS and/or 2x1 liters of HSD bottom samples (composite from all the compartments proportionate to 5 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] the quantity of the product received in each compartment after removing line contents) from the TT, seal & sample tag the same before unloading the TT. Before taking the samples, the empty sample containers should be rinsed with the same product from the TT. The label should be jointly signed by dealer / dealer's representative and the TT driver. These samples will be called as "Retained Tank Lorry Samples". The dealer should hand over, against payment, 2X1 liter of MS and/or 1 liter of HSD samples to the TT driver/representative of the carrier for retention by the carrier. In addition, the Carrier/TT driver will have to pay a deposit of Rs.300/- per sample container to the dealer. These samples shall be retained in line with Marketing Discipline Guidelines in force. The carrier with written mutual consent may leave his samples in safe custody of the dealer.
4.1.5 Marker Testing The tank lorry may be subjected to the marker test en route or at the dealer / direct customer location premises. If the product carried through TT is found failing in the marker test then actions shall be taken as mentioned in 4.2.
4.2 Procedure for Dealing with Suspected Irregularities 6 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] The following procedure shall be followed for dealing with the suspected irregularities.
a. Inform sales officer/ loading location.
b. The TT shall be detained.
c. The Sales officer/ loading location officer shall
draw the samples as mentioned in 4.3.
d. The sales officer/ loading location officer, TT
crew/ carrier's representative & consignee/ consignee's representative, inspecting authority shall prepare a joint statement mentioning the compartment wise observed density / result of the marker test / status of the security locking system and shall sign the statement.
e. In case of TT receipt at the location the loading
location officer & TT crew/ carrier's
representative shall prepare a joint statement mentioning the compartment wise observed density / result of the marker test / status of the security locking system and shall sign the statement.
f. The TT, thereafter, shall be sealed by the sales officer/ loading location officer and detained at the place of the consignee's premises. g. If the product passes in the lab test, the TT shall be decanted at the consignee's premises. If the 7 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] product fails in the lab test, then the TT shall be sent for the disposal of the product as directed by the Oil Company.
h. Action shall be taken against the carrier as outlined under clause no. 8.
4.5 Testing of "Retained Tank Lorry Samples" at lab 4.5.1 Testing for specifications If the product sample drawn from the retail outlet is found failing in the test then the last "Retained Tank Lorry samples" kept at the retail outlet shall be tested. If the "Retained Tank Lorry samples" is also failing in the test then corresponding supply location sample will be tested. If the location sample is passing in the test then it shall be construed as a malpractice done by the carrier & action shall be taken as outlined hereunder on actions for malpractices/adulteration. 4.5.2 Testing for Marker If the product sample drawn from the retail outlet is found failing in the marker test then the last "Retained Tank Lorry samples" kept at the retail outlet shall be tested for marker test. The marker test of "Retained Tank Lorry samples" will be carried out after giving prior notice to the dealer & the concerned carrier so that they can be present at the test venue if they so desire for 8 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] witnessing the testing. Field officer or the representative of the divisional office/ regional office/ territory office will also be present & conduct/ witness the marker test. This team will submit its report in the approved industry format. If the "Retained Tank Lorry samples" is also failing in the marker test then the corresponding location sample will be tested. If the supply location sample is passing in the marker test then it shall be construed as a malpractice done by the carrier & penal action would be taken against the carrier as outlined under clause no.
8."
The final Gazette notification for Marker test though was issued on 12/1/2007, Annexure P/4, however, as indicated in the note approved by the Executive Director (Retail), West, the Marker Legislation and MDG was implemented w.e.f.15/2/2007. It is further stated therein that the SGS has some reservations on the procedure note, hence, it was kept in abeyance. It needs to be mentioned that the Marker Testing System was withdrawn w.e.f.31/12/2008 due to technological failure in India, Annexure P/5.
3. On 25/2/2007 the respondents/authority claimed to have inspected the retail outlets of the petitioner and took sample of Motor Spirit Petrol and High Speed Diesel for Marker test. The report dated 25/2/2007 (first report), wherein it is indicated that 9 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] there is no failure in the Marker test so far Motor Spirit Petrol is concerned, however, so far High Speed Diesel is concerned, it was initially allegedly found that the test has responded negative, but thereafter it was declared to be positive. Based on such report, a show-cause notice was issued to the petitioner on 28/6/2007 as to why on failure of the marker test on the High Speed Diesel, dealership of the petitioner/firm should not be terminated, Annexure P/7. Alongwith the show-cause notice petitioner was also served with an inspection report of lab test allegedly conducted at Mathura dated 3/3/2007 (second report). Petitioner replied to the said show-cause notice on 10/7/2007, Annexure P/8. Thereafter, as late as on 12/2/2009 dealership of the petitioner was terminated vide Annexure P/1 dated 12/2/2009 and appeal arising therefrom was dismissed on 11/6/2009, Annexure P/2.
4. Learned counsel for the petitioner has challenged sustainability of aforesaid two test reports, which led to passing of the impugned order of termination of dealership on following grounds:-
(a) The Marker test came into existence on 15/2/2007.
First inspection report is dated 25/2/2007, wherein it is indicated that last High Speed Diesel delivery was made on 10/2/2007, therefore, the requirement of 3- tier procedure obviously could not have been 10 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] implemented beginning with taking sample at the depots / supply point.
(b) According to respondents, sample of High Speed Diesel was taken on 25/2/2007 at retail outlet by SGS and was found adulterated in Marker test on changing the colour pink, but the same was carried out without consent and knowledge of the petitioner. Thereafter, the company representative visited the retail outlet and had taken sample of HSD in three sealed bottles of 1 Ltrs. each. One sample was given to dealer, another was kept by the company and third was used for laboratory analysis. The company sent the sample to Mathura laboratory for Marker test, but the petitioner was not notified. Petitioner was also not given opportunity to remain present at the time of test of sample at the Mathura laboratory. Therefore, the test report prepared is behind the back of the petitioner and the same could not have been made the basis for taking any prejudicial action against petitioner much less termination of dealership.
(c) Further, the procedure prescribed for taking sample under clause 8 of the Control Order, 2005 was violated inasmuch as sub-clause (5) of clause 8 prescribes the competent authority of the company to 11 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] give report within a period of 20 days and thereafter within a period of 5 days notice should be given to the dealer for taking further action, whereas in the instant case the inspection was done on 25/2/2007, notice was given on 28/6/2007, which ex facie is barred by time and reflects totally arbitrary and malafide intention of respondents while passing the impugned order on 12/2/2009. The report dated 25/2/2007 has been manipulated. In the analytical result of tank no.1 for High Speed Diesel, initially report was found negative i.e. non-adulterated, but later on interpolation was done in the report and in place of 'N' word 'P' was overwritten making it positive behind the back of the petitioner and to his grave prejudice: page 31 of the writ petition compilation.
In the context of aforesaid irregularities in carrying out the test, highlighted in reply to show-cause notice, the matter was placed before the Executive Director (Retail) West. Relevant extract whereof reads as under:-
"JUSTIFICATION The Detailed procedure for Marker Tests at Retail Outlets dtd.09.02.07 as well as the Revised Marker Testing Procedure dtd.29.03.07 gives a provision for testing of samples in the laboratory in the presence of dealer. The Marker legislation & MDG was implemented w.e.f.15.02.07 but SGS had some reservations on the procedure note hence it was kept in abeyance. This particular 12 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] incident of Marker Failure at Kisan Diesel kendra, Baroda on 25.02.07 pertains to the interim period. As per the procedure, we should have only conducted Marker Test on the RO, TL and SL sample of the Laboratory in the presence of the Dealer. However, we have provided a full specification test report along with the SCN which clearly mentions that the RO sample meets the requirement of HSD (BSII) but fails in Marker Test.
Since we have denied the dealer the choice to be present at the time of Marker Testing at the Laboratory, we feel that it could result in un- necessary litigation in future. Considering this, we recommend that the RO Retention Sample be re- tested for Marker in the Laboratory in the Dealer's presence to decide the further course of action on the dealership."
(Emphasis supplied) For test of retail outlet sample petitioner was called on 7/1/2008 in the laboratory at Indore. On behalf of petitioner, three persons Proprietors of M/s Kisan Diesel Kendra, namely, Chhotelal Simariya, Yogendra Singh and Rajmohan Singh reached at the laboratory, Indore with dealer/retail outlet sample.
Learned counsel by way of amendment in the writ petition has placed on record the fact that on that day it was informed by the Lab Officials that the tank lorry samples and depots samples are not available, hence, the retail outlet sample cannot be compared with those samples. Thereafter, petitioner was asked to go and wait for further communication. Petitioner was also given to understand that he shall be called at a later stage for test on due date, however, thereafter there was no communication, but from the return filed by the respondents it has come to know that 13 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] an ex parte report was prepared upon the Marker test conducted on company retention sample. Neither the petitioner was present at the time of test nor the test report was ever communicated to the petitioner. Therefore, the entire action of termination of dealership is based on totally one sided inspection and ex parte report so much so even the directions of the Executive Director (Retail), West, referred above have not been followed in the matter of termination of dealership inasmuch as no Marker test was conducted on retail outlet/dealer sample though available, instead the same was allegedly conducted on company retention sample. Further, the said test was conducted behind the back of the petitioner. Under these circumstances, the impugned order cannot be sustained in the eyes of law. Learned counsel relied upon the judgments in the cases of Harbanslal Sahnia and Another vs. Indian Oil Corpn. Ltd. And Others, (2003) 2 SCC 107, Natwar Singh vs. Director of Enforcement and Another, (2010) 13 SCC 255 and Hindustan Petroleum Corporation Limited and Others vs. Super Highway Services and Another, (2010) 3 SCC 321.
5. Per contra, learned senior counsel for the respondents has made submissions inter alia contending that the impugned action of termination of dealership is based on two test reports about adulteration by the petitioner in the High Speed Diesel at the retail outlet. One conducted on 25/2/2007 itself and second after taking 14 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] three samples of 1 Ltr. each of High Speed Diesel; one handed over to the dealer, second remained with the oil company and third was sent to the Mathura laboratory. Report dated 3/3/2007, Annexure R/2/3, indicates (i) supply location sample meets the requirement of HSD (BSII) and, therefore, found 'N' (No Pink) for Marker test, (ii) corresponding tank lorry retained sample meets the requirement of HSD (BSII) and found 'N' (No Pink) for Marker test. However, the retail outlet (RO) sample meets the requirement of HSD (BSII) and found 'P' (Pink) for Marker test. Therefore, as per the report, the RO sample was contaminated in Marker test. No illegality under these circumstances can be said to have been committed while terminating the dealership.
In compliance of direction, as indicated in Annexure R/6, petitioner was called at Indore laboratory on 7/1/2008. The petitioner himself suggested that the company retention sample be tested first and he will be satisfied with the report from that sample and if the company retention sample test fails, then he will not insist for re-test of dealer retention sample. Thereafter, in the presence of petitioner's representative seal of the company retention samples were checked and were found to be intact. No objection about the condition of sample, i.e. seal and packaging was raised. Sample retained by the company was tested first for Marker and the same was found adulterated being turned into pink colour. Thereafter, the Laboratory In-charge requested the 15 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] petitioner's representative to sign the report, however, petitioner's representative left the sample, i.e. dealer retention sample and went away without signing the earlier report. The dealer retention sample could not be tested due to absence of petitioner's representative and it remained intact in the safe custody of one Mr. Vineet Bhutani, who at that point of time was Assistant Manager, BPCL, Shivpuri. Thereafter, at a subsequent stage, the sample was handed over by Mr. Vineet Bhutani to petitioner's representative on 12/1/2008. The same is placed on record alongwith the affidavit of Mr. Bhutani dated 26/8/2016. Thereafter, no steps were taken by the petitioner. As such, even in the third report the sample taken at the retail outlet (company retention center) was turned pink. Therefore, no illegality can be attributed to the impugned order of termination of dealership and no exception thereto can be taken. Even otherwise disputed question of facts have been raised by the petitioner in the matter of conducting Marker test on the High Speed Diesel sample, which cannot be gone into by this Court invoking jurisdiction under Article 226 and 227 of the Constitution of India. In support of his contentions, learned counsel relies upon the judgment in the case of Amba Filling Station and Another vs. Union of India and Others, 2012 ALR 729.
6. Heard.
Following questions arise for consideration:- 16 Writ Petition No.3185/2009
[M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] i- Whether petitioner is not entitled to invoke writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India for the reason, termination of High Speed Diesel dealership was due to failing of sample in Marker test in the laboratory and the report upon examination have been found to be in order by authority competent to terminate the dealership and appellate authority confirming the same? ii- Whether disputed questions of facts are involved to decline exercise of writ jurisdiction under Article 226 and 227 of the Constitution of India?
iii- Whether principles of natural justice have been violated in the matter of carrying out the test at the laboratory at Mathura or Indore entitling the petitioner to make complaint of violation of Article 14 read with Article 19 (1) (g) of the Constitution of India in the matter of termination of High Speed Diesel dealership and seek redressal of grievance against termination of dealership under Article 226 and 227 of the Constitution of India?
iv- Whether respondents have acted fairly and reasonably and adhered to written regulated procedure to carry out Marker test?
v- Whether impugned orders of termination of dealership 17 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] and the appellate order are liable to be quashed?
7. There is no dispute between the parties that the Marker test implemented in the year 2007 was withdrawn in the year 2008 by the oil companies for the reason that the Marker system was held to be vulnerable in nature and practice.
The BSII test (Bureau of Indian Standard Test), in practice for years together, has always been a reasonable and workable test for adulteration in petroleum products.
The last high speed diesel delivery was made at the petitioner's outlet on 10/2/2007. Marker test was implemented w.e.f.15/2/2009 and respondents inspected the retail outlet of the petitioner on 25/2/2007. Thus, the Marker test could not have been applicable, as the product sent to the retail outlet on 10/2/2007 was not mixed with the marker as no marker kit was available on that day, therefore, the Marker test was not conducted in accordance with the procedure laid down: Annexure P/6 at page 30.
8. That apart, there appears to be cutting and overwriting in the aforesaid report of 25/2/2007 and possibility of interpolation with the results overwriting 'P' in place of 'N' against coloumn No.04111270, Annexure P/6 at page 31, cannot be ruled out when learned counsel contends that the report was initially in favour of the petitioner, whereby no pink colour was found and thereafter it was changed as 'P'.
18 Writ Petition No.3185/2009
[M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others]
9. Undisputedly, for carrying out the test for adulteration at Mathura laboratory three samples of 1 Liter each of HSD were taken on 25/2/2007. One was given to the dealer, the other was given to the oil company and third one was sent to Mathura laboratory for testing on 27/2/2007, however, neither any notice was given to the petitioner nor the petitioner was present on the date of testing of the sample. The report suggests that supply location sample was found 'N' (no pink) for Marker test. Corresponding tank lorry sample also found 'N' (no pink) for Marker test, however, retail outlet sample though met the requirements of HSD (BSII), but found pink for Marker test and, therefore, prima facie opinion was given that the product represented by the retail outlet has turned positive in test with marker SKO. As such, the sample at depot and that of tank lorry are shown to be of 10/2/2007, but it is difficult to perceive that as to how marker substance was mixed in such samples, as Marker test came into existence on 15/2/2007 and only thereafter marker kits could have been given effect to for Marker test.
10. Be that as it may. For the reason petitioner was not noticed and given opportunity to remain present, the report dated 3/3/2007 could not have been made basis for termination of dealership by issuance of impugned order dated 12/2/2009, as the Executive Director (Retail) West has found the aforesaid serious lapse in the context of Mathura laboratory test report and, 19 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] therefore, directed retail outlet retention sample to be retested for marker in the laboratory in dealer's presence to decide the further course of action of dealership. As such, respondents were only required to conduct Marker test on the retail outlet sample, but on 7/1/2008 respondents have carried out the Marker test on the company retention sample, but this very test itself is fallacious being contrary to the directives of the Executive Director (Retail) West, though it is sought to be contended that with the consent of the petitioner company retention sample was put to Marker test. The aforesaid facts have been denied by petitioner by amending the writ petition and adding para 5.5(B), wherein it is stated that the petitioner was called on 7/1/2008 and joint testing was required to be done. The petitioner has also come with his retail outlet sample of high speed diesel, however, it was informed by the lab officials that tank lorry sample and depot samples are not available, therefore, the retail outlet sample cannot be compared with those samples and thereafter petitioner waited for considerable long period to receive further communication, but there was no further communication. It is wrongly mentioned that the petitioner had left behind the retail outlet sample. This fact he came to know only through the return filed before this Court. It is emphatically stated that the petitioner is still having the aforesaid sample with him, which the petitioner can produce, if this Court directs him to do so. It is denied that any lab test was conducted 20 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] in his presence at Indore laboratory on 7/1/2008. Report, if any, prepared, is behind his back. Therefore, the decision of respondents of termination of dealership is on arbitrary reports prepared by respondents.
11. Under these circumstances, facts suggest that dealer's retention sample undisputedly was not put to Marker test. It is a clear violation of directives of the Executive Director (Retail) West. There was no occasion to conduct Marker test on company retention sample on 7/1/2008. The contention that the same was done with the consent of the petitioner cannot be countenanced as there is emphatic denial by the petitioner and there is no other evidence to the contrary.
12. At this stage, this Court called upon the senior counsel for the respondents/Oil Company Shri K.N. Gupta to seek instructions for the purpose of carrying out adulteration test on the sealed retail outlet sample available with the petitioner. Shri Gupta states that he has instructions to state that no such test is possible.
As a result, this Court concludes as under:-
i- Since Marker test carried out at Mathura laboratory on 27/2/2007 was without notice to the petitioner and behind his back, the same is contrary to the procedure prescribed under the Industry Transport Discipline Guidelines and in violation of principles of natural justice. Likewise, the Marker test conducted on 7/1/2008 at Indore laboratory since was 21 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] not carried out on the retail outlet retention sample, as directed by the Executive Director (Retail) West, therefore, its report is held to be arbitrary, illegal and contrary to the directions of the competent authority and inconsequential, as once the Executive Director (Retail) West had directed to carry out Marker test on retail outlet sample, the concerned Area Manager had no authority to deviate therefrom and resort to Marker test on company retention sample. This act of the Area Manager has caused serious prejudice and detrimental to the rights and interests of the petitioner, which led to termination of dealership. Therefore, the impugned termination of dealership based upon the aforesaid reports are held to be arbitrary and illegal. Hence, the petitioner is entitled to invoke writ jurisdiction of this Court under Article 226 and 227 of the Constitution of India.
ii- This Court finds that in view of the aforesaid conclusion, the contention that the instant case involves disputed questions of facts and not liable to be interfered with under Article 226 and 227 of the Constitution of India cannot be countenanced. Petitioner has been denied equality before law and equal protection of law in the matter of termination of dealership. To justify the action of termination of dealership the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the 22 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] said purpose. It was the bounden duty of the respondents to issue notice to the petitioner and afford him opportunity to remain present at the time of testing of sample at Mathura laboratory and further the retail outlet sample, since was available, the same ought to have been tested and not the company retention sample. The aforesaid view of this Court finds support from the judgments in the cases of Harbanslal Sahnia (supra), Natwar Singh (supra) and Hindustan Petroleum Corporation (supra) rendered in almost similar facts and circumstances in the context of applicability of principles of natural justice and adherence of the procedure/guidelines in the matter of termination of dealership of petroleum products.
13. Accordingly, the writ petition stands allowed. Impugned orders of termination of dealership, Annexures P/1 and P/2, dated 12/2/2009 and 11/6/2009, are hereby quashed. Respondents are directed to restore the dealership of the petitioner forthwith.
(Rohit Arya) Judge Arun* 23 Writ Petition No.3185/2009 [M/s Kisan Diesel Kendra through its Proprietor vs. Union of India and others] HIGH COURT OF MADHYA PRADESH, JABALPUR, BENCH AT GWALIOR WRIT PETITION NO.3185/2009 .........Petitioner: M/s Kisan Diesel Kendra through its Proprietor Versus .......Respondents : Union of India and others ORDER post for 29/12/2016 (Rohit Arya) Judge ..../12/2016