Jharkhand High Court
Hirak Point, Dealer And Bharat ... vs Bharat Petroleum Corp. Ltd. And Ors. on 4 December, 2002
Equivalent citations: [2003(1)JCR315(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
ORDER
1. The petitioner a petroleum dealer has challenged the order dated 9th November, 2002 passed by the Territory Manager (Retail) Dhanbad whereby and whereunder he has been pleased to suspend the sales and supply of all products to the petitioner's retail outlet for a period of 30 days and further levied fine of Rs. 20.000/-.
2. According to petitioner the respondents themselves supplied sub-standard materials and there was no adulteration made by petitioner in the petroleum products.
3. On the other hand, according to the respondents certain items having been found below the required standard in the petitioner's tank the impugned order of suspension was issued and fine was levied.
4. It appears that the respondents initially issued a show- cause notice on 31st October, 2002 which reads as follows :
"By HAND DELIVERY DHN/HIRAK POINT M/s. HIRAK POINT DEALER-M/S BHARAT PETROLEUM CORP. LTD., DHAIYA, DHANBAD Dear Sir, your Dealership Affairs : Failure of MS Sample--We refer to the MS samples drawn from the underground tank of your outlet by our Sales Officer, Dhanbad, on 16.9.2002. While the samples of HSD/LUBS have passed, the sample of MS drawn from the underground tank has been tested (confirming of the test method IS : 1448) by our laboratory and the following are the observations :
1. The sample of MS fails to meet specifications of RON (RESEARCH OCTANE NO.) IS-1448 standards. The eratil outlet sample also is not within the reproducibility limit of last supplied T/L sample. From the test report we observed that the RO sample failed in terms of "Research Octane Number" under test method IS : 1448 P-27 beyond permissible limits.
Please note that failure of MS sample of your outlet is considered as a serious violation of the Dispensing Pump and selling licence agreement dated 23.1.1995 signed between you and this corporation, the relevant clause of which is mentioned below.
Clause 10(g) : "Not to adulterate the petroleum products supplied by the company and at all times to take all reasonable precautions to ensure that the Motor Spirit or H.S.D. is kept free from water, dirt and other impurities and served from the outfit in such condition.
In view of the above, please let us have your explanation for such failure of MS sample drawn from your retail out let within seven days from the receipt of this letter failing which action in line with DPSL agreement will be initiated against your dealership for violation of the agreement clauses mentioned above. Copy of the test report is enclosed herewith for your instant reference.
Please acknowledge receipt of this letter. Thanking you Yours faithfully For Bharat Petroleum Corpn. Ltd.
Ashok Pandey Territory Manager (Retail) Dhanbad."
5. The petitioner while denied the allegation vide letter dated 7th November, 2002 mentioned that there was no question of adulteration of the products. Further he mentioned that the product may not be meeting the norms for the reasons shown at paragraph 2 and 3 to the letter as quoted thereunder :
'Though, there is a slight variation in the RON numbers of retention samples and the samples taken from our under-ground tank, we can only say that utmost care was taken while taking the T/T samples. However, there is a chance that the retention samples might not be correctly representing the entire batch of supply, which might have led to slight difference in RON Nos. of retention samples and underground tank samples. Furthermore, we have decanted 3000 liters of MS in the underground tank with a stock of approximately 12 kls. The product supplied before that has not been tested and there might be possibility that the influence of earlier products might have led to the difference in octane Nos. of our sample (80) viz. a viz retention sample (85). This, in our opinion, could be the only reason, why the retail outlet sample is not within the reproducibility limit of last supplied T/L sample. At the cost of repetition, we would like to inform you that we do not have any method whatsoever to check the quality of product with respect to RON except checking the density/filter paper test. The product supplied to us by the company were meeting density norms and hence we have decanted the product."
6. The test report has been enclosed by petitioner as Annexure- 3/1 which is the Annexure-C to the counter-affidavit. The report shows that the motor spirit cleared all the test except research octane number P:27. The requirement of I.S. 2796 : 2000 is 88 Min. The result of sample test of retail outlet (R.O) was shown to be 80.0, tank load (T.L.) was 85.0 and supply location (S.L.) as 89. Admittedly the tanker belongs to the Bharat Petroleum Corporation Limited which loaded this motor spirit and on test it was found to be 85.0, i.e. below the requirement standard of 88 Min. From the aforesaid fact it will be evident that from the supply location (S.L.) when it was taken to the tanker of the Corporation the standard fell from 89.00 to 85.0 i.e. below the requirement level. Subsequently, when the tanker of the Corporation reached the retail outlet (R.O.) the standard further fell from 85.00 to 80.00.
7. Thus, sub-standard product having supplied by the Corporation from its premises the petitioner cannot be blamed for failure of stand 88.00 Min. to 80.00 till it is established that the petitioner was hand in globe with the driver of the Corporation's tanker or any employee of the Corporation.
8. For the reason aforesaid the order dated 9th November, 2002 is set aside with direction to respondents to refund the penal amount of Rs. 20,000/- to the petitioner immediately, if the petitioner has already deposited.
9. However, it is open to the Corporation to take disciplinary action against its employee/tanker driver etc., the standard of the petroleum product having gone down when it was filled in the tanker.
10. The writ petition allowed with aforesaid observations.