Himachal Pradesh High Court
M/S Shri Balaji Filling Station vs Union Of India & Others on 9 July, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 170 of 2017 alongwith connected matters.
Date of Decision : July 9 , 2018
1. CWP No. 170 of 2017 M/s Shri Balaji Filling Station ... Petitioner Versus Union of India & others. ...Respondents
2. CWP No. 301 of 2017 M/s Hansraj HP Central Transporter ... Petitioner.
Versus Union of India & others. ...Respondents
3. CWP No. 169 of 2017 M/s Paonta HP Center ... Petitioner.
Versus Union of India & others. ...Respondents
4. CWP No. 171 of 2017 M/s Amar Service Station ... Petitioner.
Versus Union of India & others. ...Respondents 5. CWP No. 172 of 2017 Harpreet Singh Sabharwal ... Petitioner.
Versus Union of India & others. ...Respondents ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 2 6. CWP No. 174 of 2017 M/s Jalpa Mata HP Center ... Petitioner.
.
Versus Union of India & others. ...Respondents 7. CWP No. 176 of 2017 M/s Nirmal Pitambare HP Centre ... Petitioner.
Versus
Union of India & others. ...Respondents
8. CWP No. 278 of 2017
M/s Snowline Filling Station
r to
Versus
... Petitioner.
Union of India & others. ...Respondents
9. CWP No. 279 of 2017
M/s Sharma Oil Carrier ... Petitioner.
Versus
Union of India & others. ...Respondents
10. CWP No. 311 of 2017
M/s Amar Service Station ... Petitioner.
Versus
Union of India & others. ...Respondents
11. CWP No. 220 of 2018
M/s Mohan Singh & Sons ... Petitioner.
Versus
Union of India & others. ...Respondents
::: Downloaded on - 12/07/2018 23:01:41 :::HCHP
3
12. CWP No. 224 of 2018
M/s Puri HP Centre ... Petitioner.
.
Versus
Union of India & others. ...Respondents
13. CWP No. 225 of 2018
M/s Amit Oil Carrier ... Petitioner.
Versus
Union of India & others. ...Respondents
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice, The Hon'ble Mr. Justice, Ajay Mohan Geol, Judge.
Whether approved for reporting? No. 1For the petitioner : Mr. Bipin C. Negi, Senior Advocate, with Mr. Prashant Sharma, Advocate, for the petitioners in CWP Nos. 169, 170, 172, 174 and 176 of 2017.
Mr. Tara Singh Chauhan, Advocate, for the petitioner in CWP No. 301 of 2017.
Mr. Prashant Sharma, Advocate, for the petitioner in CWP No. 171 of 2017.
Mr. Rajiv Rai, Advocate, for the petitioner in CWP Nos. 278, 279 & 311 of 2017 and 220, 224 & 225 of 2018.
For the respondent : Mr. Rajesh Kumar Sharma, Assistant Solicitor General of India for respondents/Union of India.
Mr. Vinay Kuthiala, Senior Advocate, with Mr. Rahul Mahajan, Advocate for respondents/Hindustan Petroleum Corporation Ltd.
Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 4Mr. Anshul Attri, Advocate, vice Mr. Anshul Bansal, Advocate, for respondent/CBI.
.
Sanjay Karol, ACJ. (Oral) Since common issues are involved in all these petitions, the same are taken up together and are being disposed of by a common judgment. However, facts of CWP No. 170 of 2017, titled as M/s Balaji Filling Station vs. Union of India & others, are being discussed herein below.
2. Petitioner has prayed for the following reliefs:
a) Issue a writ/order/direction in the nature of Certiorari quashing the impugned Show Cause Notice dated 03.01.2017 (Annexure P-3) arbitrarily issued by the respondent No.3;.
b) Issue a consequent writ/order/direction in the nature of Mandamus directing the respondents to adhere to the Tender terms and conditions stipulated in the Agreement dated 01.04.2013 between the petitioner and the respondent No. 2 and further comply with the applicable guidelines;
c) Issue appropriate directions to the Respondents to permit the petitioner in fulfilling the terms and conditions of the agreement which is valid and subsisting till date; and ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 5
d) Pass any such other order(s) as deemed necessary and appropriate in the interest of .
justice.
e) The record of the case may be called for."
3. Annexure P-3 is notice dated 3.1.2017 calling upon the petitioner to show cause as to why action for breach of terms of agreement dated 22.1.2013 (Annexure P-1) be not taken against them.
4. On 20.1.2017, this Court had passed an interim order directing that no action in terms of said show cause notice be taken.
5. However, on 16.05.2017, after hearing the parties, this court passed the following order:
"In all these writ petitions, petitioners lay challenge to show cause notices, issued on different dates sometime in the month of December, 2016 and January, 2017, calling upon them to show cause as to why action for blacklisting be not taken against them. Also why amount(s) as damages, varying from `10.00 lac to `50.00 lac be not recovered from them.
2. In fact, the respondent-Corporation alleges that their staff in connivance with the petitioners caused loss worth several crores of rupees to the respondent-Corporation. The modus-operandi adopted by the staff of the Corporation and the ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 6 petitioners is indicated in one such show cause notice dated 4.1.2017, (Annexure P-15 page 246 in .
CWP No. 171 of 2017), in the following manner:-
"x x x x To further investigate the matter analysis of dip date was made. On analysis of dip date of underground (UG) HSD tank 9 in which said TT was supposed to be unloaded, it has been observed that although TT was declared sick at 1312 hours, dip of UG tank No. 9 for HSD started increasing at 1310 hrs, even before declaring the TT as sick. Increase in dip of UG tank from 1312 hrs is from 236.9 cm to 272.3 cm at 1333 hrs (increase of 7650 liters), which may be due to opening of other valves to allow product to go from other pipe lines in depot to underground tank and making it r appear as if the product has been unloaded from sick TT. It is pertinent to note here that allied activities for preparing the TT for decantation take more than 15-20 minutes and actual decantation of on chamber of product of 5 KL takes around 15 minutes. Further, increase in dip before the said TT could have been unloaded points to the fact that TT was never unloaded. Even otherwise, it is not possible to unload 18790 ltrs of HSD within just 21 minutes. x x x x x"
3. It is a matter of record that sometime in the year 2013, petitioners were awarded contract for supply of transportation of bulk petroleum products through Tank-Trucks (commonly known as "TT") from Bhatinda (Punjab) to Nalagarh (H.P.).
4. On one hand it is the petitioner's allegation that for extraneous reasons, factors and circumstances, officers/officials of the respondent- Corporation started harassing them. Issuance of several show cause notices of cancellation, blacklisting etc. is only an instance in such series.
::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 7Whereas on the other hand, respondent corporation alleges that oil/petroleum product was being pilfered .
out of the HPCL Refinery, Bhatinda Depot by the petitioners in collusion and connivance with the officers/officials of the Corporation.
5. Be that as it may, the fact of the matter being that pilferage is not denied and disputed.
6. It is a matter of record that since notices came to be issued from the office of the respondent-
Corporation at Shimla, the petitioners have been assailing the same before this Court and in the case of one such petitioner, we refer to cite as an example, this court has been repeatedly interfering and passing several interim orders. On 13.10.2014, Court passed an interim order in CWP No. 7395 of 2014 followed with an interim order passed in CWP No. 2134 of 2015 on 2.4.2015 and thereafter another interim order was passed by this Court on 20.1.2017 in CWP No. 171 of 2017. Since then the writ petitions are pending consideration before this Court.
7. We find that in one such petition listed today, being CWP No. 278 of 2017, petitioner therein has prayed for the matter being investigated by an independent agency like Central Bureau of Investigation (in short "CBI").
8. From the response so filed by respondent- Corporation, it appears that some disciplinary action stands taken against the erring officers/officials but then they do not categorically/specifically state which of the employees or the petitioners/their ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 8 authorized representatives/their employees were involved in the alleged pilferage.
.
9. As such before we take up all these petitions for further hearing, considering the allegations made by respective parties as also the enormity of pilferage of petroleum product involved in the instant case, we are of the considered view, that the matter be investigated by the CBI and at least a preliminary inquiry in that regard be conducted by the said Agency and status report submitted before this Court.
10. At the cost of repetition, we may observe that it is the enormity of the alleged pilferage of the petroleum product which has prompted us to pass the order. After all petroleum is a National asset and the respondent-Corporation is a trustee and custodian thereof. In fact, during the course of hearing, learned counsel for the petitioners welcomed the suggestion of the Court of having a detailed investigation carried out by the investigating agency. We may also observe that till date, no endeavour was made by the respondent in reporting the matter to the police. Why so? is not apparently clear from the record. No FIR with regard to the pilferage stands registered.
11. The agreement entered into inter se the parties is that of transportation of petroleum products from one state to another. The enormity and extent of pilferage at the depots in both the states i.e. Punjab and Himachal Pradesh definitely requires examination. Is it that all the petitioners and the ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 9 concerned officials, concertedly, caused theft over a continuous period of time, or is it that only the .
officials of the respondent-Corporation are involved?
The pilferage of petroleum product, running into several crores of rupees, definitely shocks the conscience of the court in forming an opinion that the mater be investigated. This Court is satisfied that there is substantial material on record, prima facie, establishing that definitely there is loss of national asset. It is not a case of suspicion alone. In fact, respondents themselves admit such fact.
12. The manual of procedure required to be followed by the officials of the respondent-
Corporation for loading and unloading the "TT", reveals that everything is computerized and there are checks and balances, only under the control of the officials of the respondent/Corporation.
13. The Hon'ble Supreme Court in Onkar Lal Bajaj and others Vs. Union of India and another, (2003) 2 Supreme Court Cases 673 has held:-
"36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision- making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 10 fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the .
reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
14. The Apex Court in Secretary, Minor Irrigation & Rural Engineering Services, U.P. and others vs. Sahngoo Ram Arya and another, (2002) 5 SCC 521, clearly acknowledged the power of the High Court under Article 226 of the Constitution of India, to direct an inquiry by the Central Bureau of Investigation (CBI). However, it is also a settled principle of law that the Court prior to the passing of the order must prima facie come to the conclusion based on sufficient material that there is need for such an inquiry.
15. The Apex Court in Sheela Barse vs. Union of India, (1988) 4 SCC 226, has held that:-
"12. Again, the relief to be granted looks to the future and is, generally, corrective rather than compensatory which, sometimes, it also is. The pattern of relief need not necessarily be derived logically from the rights asserted or found. More importantly, the Court is not merely a passive, disinterested umpire or onlooker, but has a more dynamic and positive role with the responsibility for the organization of the proceedings, moulding of the relief and - this is important - also supervising the implementation thereof. The court is entitled to, and often does, seek the assistance of expert panels, Commissioners, Advisory Committee, amici, etc. This wide range of the responsibilities necessarily implies correspondingly higher measure of control over the parties, the subject-matter and the procedure. Indeed as the relief is positive and implies affirmative action the decisions are not ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 11 'one shot' determination but have on-going implications. Remedy is both imposed, negotiated or uasi-negotiated."
.
16. When larger public interest is involved, it is the responsibility of the Constitutional Court, to assure judicial legitimacy and accountability. (See: Sahid Balwa vs. Union of India and others, (2014) 2 SCC
687.
17. Their Lordships of the Hon'ble Supreme Court in Central Bureau of Investigation through S.P. Jaipur vs. State of Rajasthan and another, (2001) 3 SCC 333 have held that the powers of the High Court under Article 226 of the Constitution of India or the Supreme Court under Article 32 or Article 142 (1) of the Constitution can be invoked, though sparingly, for giving such direction to Central Bureau of Investigation in certain cases. Their Lordships have held as under:
"14. True, powers of the High Court under Article 226 of the Constitution and of the Supreme Court under Article 32 or Article 142(1) of the Constitution can be invoked, though sparingly, for giving such direction to the CBI to investigate in certain cases, [vide Kashmeri Devi vs. Delhi Administration and anr. {1988 (Supple.) SCC 482} and Maniyeri Madhavan vs. Sub-Inspector of Police and ors. {1994 (1) SCC 536}]. A two Judge Bench of this Court has by an order dated 10.3.1989, referred the question whether the High Court can order the CBI to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf under Section 6 of the Delhi Act.
15. In Mohammed Anis vs. Union of India and ors. {1994 Supple (1) SCC 145} Ahmadi, J. (as ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 12 his Lordship then was) has observed thus (SCC pp. 148-49, para 6):
.
"6. True it is , that a Division Bench of this Court made an order on March 10, 1989 referring the question whether a court can order the CBI, an establishment under the Delhi Special Police Establishment Act, to investigate a cognizable offence committed within a State without the consent of that State Government or without any notification or order having been issued in that behalf. In our view, merely because the issue is referred to a larger Bench everything does not grind to a halt. The reference to the expression court in that order cannot in the context mean the r Apex Court for the reason that the Apex Court has been conferred extraordinary powers by Article 142(1) of the Constitution so that it can do complete justice in any cause or matter pending before it."
18. Their Lordships of the Hon'ble Supreme Court in Bhavesh Jayanti Lakhani vs. State of Maharashtra and others, (2009) 9 SCC 551 have reiterated that superior courts have power to issue direction to Central Bureau of Investigation to investigate a matter. Their Lordships have held as under:
"99. We are not concerned, as it is not necessary for us to determine, whether a direction for making investigation by CBI by the superior courts of the country is permissible. As the law stands, we place on record such directions by the superior courts are permissible."
19. Their Lordships of the Hon'ble Supreme court in State of West Bengal and others vs. Committee for ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 13 Protection of Democratic Rights, West Bengal and others, (2010) 3 SCC 571 have held as under:-
.
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to r conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be assed as a matter of routine or merely because a party has levelled some allegations against the local police. This extra-ordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instill confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 14 cases and in the process lose its credibility and purpose with unsatisfactory investigations."
.
20. Undoubtedly respondent-Corporation is a public Corporation and is "other authority" within the meaning of Article 12 of the Constitution of India, it is the bounden duty of the respondent-Corporation to act as the custodian and guardian of the natural resources of the country which also includes petroleum products. It is in this background, taking into consideration the seriousness of the issue involved in the matter that the above directions have been issued by this Court.
21. As such in all these petitions, CBI through its Director, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi is impleaded as a party-respondent. Notice is accepted by Mr. Ashok Sharma, learned Assistant Solicitor General of India on behalf of the newly added respondent. Registry to make all necessary corrections in the memo of parties.
22. We direct the newly added respondent to forthwith conduct an inquiry and place the preliminary investigation report/status report on record, in a sealed cover, within a period of four weeks from today.
23. Needless to add, parties before this Court are duty bound to assist the investigating agency in the course of investigation.
24. With vehemence Mr. Vinay Kuthiala, learned Senior Counsel argues that interim orders passed in ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 15 these petitions be vacated. Having heard learned counsel for the parties at length, we are of the .
considered view that till such time preliminary investigation report/status report is submitted by the CBI, considering the contents of the show cause notice, justice demands that till the next date of hearing, arrangement so worked out by way of interim orders would be continued as such. Ordered accordingly.
List on 20.6.2017.
Copy dasti."
6. Today, Mr. Anshul Attri, learned counsel, informs that now the Central Bureau of Investigation has registered an F.I.R. and action, both against the officers/officials of the respondent organization as also the Contractor(s) and their authorized representative(s) stands taken.
7. On 9.1.2018, we had passed the following order:
"As prayed for, these applications are disposed of reserving liberty to the applicants to take appropriate action against all erring persons/officers/officials. However, no coercive action, in the shape of recovery of amount, if any, adjudicated against any one of the writ petitioners and black listing such persons, in whose favour we have passed interim order, shall be taken, without leave of the Court. This, however, shall be subject to each one of the writ petitioners filing affidavits before this court that in the event of the writ ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 16 petitions being dismissed, they shall deposit such of the amount, which stands adjudicated by the .
authorities, within two weeks of the respondents having taken action against the. Applications stand disposed of.
Copy dasti."
8. Having heard learned counsel for the parties and perused the record, we are in agreement with the learned counsel, that these petitions can be disposed of on the following mutually agreed terms:
(a) One last and final opportunity shall be afforded to each one of the writ petitioner(s) to respond to the show cause notice(s), if so desired. Writ petitioner(s) undertake to appear before the authority at 10.00 a.m., on 20th July, 2018.
(b) Further, additional material, if any, within a period of one week thereafter be placed by the writ petitioner(s).
(c) The authority shall take appropriate action on the show cause notice(s) already issued, by considering the material so placed on record by each one of the writ petitioner(s) after affording adequate opportunity of hearing.
(d) Such order shall be passed within a reasonable period by assigning reasons, copies whereof, shall be supplied to the writ petitioner(s).::: Downloaded on - 12/07/2018 23:01:41 :::HCHP 17
(e) Such decision, shall be taken uninfluenced of any alleged predetermined state of mind, .
about which we do not express any opinion, which according to the petitioner(s) is reflected in the show cause notice(s).
(f) Each one of the writ petitioner(s) shall be bound by their undertaking(s) furnished to this Court in terms of order dated 9.1.2018. This, however, shall be subject to the petitioners taking recourse to such remedies as would otherwise be available, in accordance with law.
Petitions as also all the pending applications stand disposed of in the aforesaid terms.
Copy dasti.
(Sanjay Karol), Acting Chief Justice.
(Ajay Mohan Goel), Judge.
July 9 , 2018 (PK) ::: Downloaded on - 12/07/2018 23:01:41 :::HCHP