Calcutta High Court (Appellete Side)
Ganesh Oraon vs Union Of India & Ors on 12 April, 2012
Author: Ashoke Kumar Dasadhikari
Bench: Ashoke Kumar Dasadhikari
1
12.04.2012
ss W.P. 21013(W) of 2010
Ganesh Oraon
Vs.
Union of India & ors.
Mr. Soumya Majumdar
Mr. Arjun Roy Mukherjee
Mr. Joydeep Acharya
.... For the petitioner
Mr. Arunava Ghosh
Mr. Biswaroop Bhattacharya
Mr. Sudhangshu Sil
Mr. Raj Kumar Basu
... For the respondent nos.5 to 10
The writ petitioner is aggrieved against the impugned order of termination passed by I.O.C.L. on 23rd July, 2010 wherein the I.O.C.L. authorities have terminated the licence of Kerosene Oil dealership granted in favour of the writ petitioner on the ground that suppression of material facts and non-compliance of condition of the letter of intent which rendered the dealership liable to be terminated.
The material facts which require consideration are stated hereunder :-
By and under a letter dated 3rd June, 1994 the petitioner was offered a kerosene oil dealership at Nagrakata, district Jalpaiguri under S.T. category of 2 1989-1993 marketing plan on the basis of the application made by the petitioner on 19th August, 1993. Sub-clause 2.5, 2.6 and 2.9 of Clause 2 of the agreement reads as follows :-
"2.5 It will always be a basic condition for an award of SKO/LDO Dealership that you shall operate the Dealership personally full time and you will give us a written undertaking to this effect and shall not assign or part with the same to any other persons(s).
2.6 You will be notified by Company in writing after the facilities mentioned above are made available and they are ready for commissioning the Dealership and immediately on receipt of the above notice from the Company, you shall, within a period of two months, comply with the following requirements and produce proof thereof to our satisfaction.
(a) You have obtained each and every licence necessary for operating your Dealership, as may be required under any Central/State Govt./Municipal or Local Authorities for the time being in force, and
(b) You have resigned from your employment if you are employed and obtained the letter of Acceptance from your employers.
Please note that failure to comply with the two requirements mentioned in (a) & (b) above will 3 entitle the Company to withdraw this Letter of Intent without making any further reference to you, purely at your own risk.
2.9 The Dealership in your favour will be confirmed/formalised by any appointment Letter followed by the signing of our standard Dealership Agreement after the facilities are made available and you are in a position to commence the operation of the Dealership."
Since 2.5 clearly stipulates that basic condition for awarding the dealership is that the petitioner shall operate the dealership personally full time and the petitioner will have to give a written undertaking to this effect and shall not assign or part with the same to any other person.
However, 2.6 stipulates that the petitioner would be notified by the company in writing after the facilities mentioned above are made available and he will have to resign from the employment and obtain the letter of acceptance from the employer within a period of two months from the notice issued by the Company.
It was contended on behalf of the petitioner that the notice under clause 2.6 was never issued and/or 4 served upon the petitioner by the respondent authorities. Therefore, the question of tendering resignation and/or its acceptance of the employment do not arise in the instant case.
It was submitted although the letter of intent is of 3rd June, 1994 but the supply was started in 1999 i.e. after 5 years. It was submitted by the learned Counsel that although no such notice was served as required under clause 2.6 the writ petitioner voluntarily tendered his resignation in August, 2003 which was accepted in January, 2004 by the employer of the writ petitioner.
He submitted that this was communicated to the respondent authorities voluntarily by the writ petitioner which is bonafide on the part of the petitioner. Unfortunately on 3rd August, 2009 the show-cause notice was issued against the writ petitioner and he was asked to show-cause for violating the clause 2.6(b) and he was also charged for concealment, misrepresentation and non-observance of the condition of letter of intent which has rendered his licence/dealership terminable as per all conditions of L.O.I and policy of the Corporation.
The writ petitioner answered and replied to that and he has denied the charges. However, he has pointed 5 out that his employment was in the nature of private employment and it is within the knowledge of the I.O.C.L. that joining of a purely private firm could not be rendered violation of condition of L.O.I. unless it is a Government or Public Sector or a Joint Sector Undertaking, based on specific complaint in this regard enquiry has already been held and he has been exonerated from all the charges pursuant to the said enquiry and he has requested for dropping the proceeding against him.
Ultimately after receipt of the aforesaid show-case notice he was given opportunity of hearing but he could not appear at the hearing. Lastly he was allowed to submit written submission and along with the documents he wanted to rely. He did comply with the requirement and upon consideration of all these materials the respondent authorities have decided the matter against the writ petitioner thereby cancelling the licence as mentioned hereinbefore.
Learned Counsel in support of his contention referred paragraph 6 of Section 37 of the Contract Act and submitted the contractual application between the 6 two contracting parties are required to be followed by each of them and in the instant case the concerned respondent authorities failed to issue any notice as required under clause 2.6. Therefore the show-cause notice must fail and the decision, being not in terms of clause 2.6, should be cancelled and/or set aside.
He cited some judgements in support of his submission. The first of the said judgements reported in 2006(4) C.H.N. page 180 paragraphs 10 and 11 (West Bengal Small-Scale Industries Development corporation Limited & anr. Vs. Hindustan Detergent Corporation & ors.), the second one is 2007(6) S.C.C. page 81 (Bharat Petroleum Corporation Ltd. Vs. Maddula Ratnavalli & ors.) and the other one is A.I.R. 1986 S.C. 1571 para 93 (M/s. S.P. Gramaphone Co. Vs. Commissioner of Income Tax, Patiala).
Mr. Ghosh, learned Counsel representing I.O.C.L. submitted that charge-sheet is not only against violation of clause 2.6 but also issued for violation of other terms and conditions which is an obligation to be performed on the part of the writ petitioner. He submitted that one 7 part of the charge-sheet relates to violation of clause 2.6(b) but the other part is for violation of the other terms and conditions for which an undertaking given by the writ petitioner.
Mr. Ghosh specifically mentioned clause 2.5 and he submits that this licence is granted for running it personally not by anyone else and the show-cause notice indicates that the other terms and conditions were also violated by the writ petitioner. Therefore, the contention on the part of the writ petitioner that it is a violation of clause 2.6(b) is not correct.
Mr. Ghosh submitted that as per clause 2.5 it is obligation on the part of the writ petitioner to run the business himself. Therefore, issuance of notice and his tendering resignation within sixty days is not the material factor alone for the termination of the licence.
He submitted that by and under the letter of the writ petitioner dated 7th January, 2004 the writ petitioner admitted that he has committed a mistake and he should be excused for that. Mr. Ghosh submits that the 8 petitioner was given full opportunity of hearing after issuance of show-cause notice and the respondent authorities have decided the matter with all fairness on their part and there is no illegality in taking such action. They have come to the conclusion that the terms and conditions of the letter of intent was violated and therefore, his licence was cancelled.
Mr. Ghosh submitted that Section 37 of the Contract Act is equally applicable on the part of the petitioner. He is also responsible for which he is undertaking. According to Mr. Ghosh there is no illegality in the order of termination and therefore, he submits the writ petition should be dismissed.
I have heard the submission made by the learned Counsel appearing for the respective parties and considered the materials available on record. It appears from the show-cause notice that the show-cause notice was not only under clause 2.6(b) but also for violation of terms and condition of the letter of intent which was issued to the writ petitioner to be performed by him. I find that the concerned respondents have given 9 reasonable opportunity of hearing to the writ petitioner to represent his case and the case of the writ petitioner was properly considered by the concerned respondents and the decision arrived at by them is not only for violation of terms under clause 2.6 but for violation of the other terms and conditions which equally applicable upon the petitioner. It is significant to note that it was obligation upon the petitioner to run the dealership personally but the admitted position is that he was employed in some other place, therefore, it was not possible for him to run the shop personally. This is clear violation of the terms of the letter of Indent. It is also evident that he gave undertaking to abide by the terms and conditions but he could not carry out the same.
In my view, there is no illegality and/or irregularity in coming to the conclusion as decided by the respondents.
With the aforesaid findings I do not find any merit in this writ petition. The writ petition is, thus, dismissed.
However, even in spite of the fact I have dismissed 10 the writ application, I grant leave to the writ petitioner to apply in case any application is invited for that vacancy and the concerned respondents are to consider the case of the writ petitioner if he applies for the dealership in view of new notification that may be published for filling up of that vacancy.
There would be no order as to costs.
(Ashoke Kumar Dasadhikari, J.)