Patna High Court - Orders
M/S Indian Oil Corporation Ltd vs Sushil Kumar Singh on 18 May, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.1195 of 2009
1. M/S INDIAN OIL CORPORATION LTD., Indian Oil Bhawan,
G-9, Ali Yawar Jang Marg, Bandra (East), Mumbai- 400051,
through its Managing Director
2. The Executive Director, M/s Indian Oil Corporation Ltd., Indian
Oil Bhawan, G-9, Ali Yawar Jang Marg, Bandra (East), Mumbai-
400051
3. The Divisional Retail Sales Manager, Indian Oil Corporation
Ltd., Muzaffarpur Divisional Office, Krishna Complex, Akhara
Ghat Road, Muzaffarpur- 842001
... Respondents-Appellants
Versus
SUSHIL KUMAR SINGH, son of late Musafir Singh, Proprietor of
M/s Tirupati Filling Station, NH-28, Sasamursa, District Gopalganj
... Petitioner-Respondent.
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For the Appellants: Mr. K.D.Chatterjee, Adv. with
Mr. Anil Kumar Sinha,Adv.
For the Respondent: Mr. Y.V.Giri, Sr.Adv. with
Mr. Raju Giri, Adv.
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PRESENT- THE HON'BLE THE CHIEF JUSTICE
THE HON'BLE MR. JUSTICE MIHIR KUMAR JHA
ORDER
(18/05/2010)
As per Mihir Kumar Jha,J.
Heard Mr. K.D.Chatterjee, learned counsel
for the appellants and Mr. Y.V.Giri, learned Senior
counsel for the sole respondent- writ petitioner.
2. In this intra-Court appeal the appellants have
assailed the order of the learned Single Judge dated
23.7.2009passed in C.W.J.C.No. 15505/2008 allowing the writ petition of the respondent- writ petitioner with regard to termination of his dealership of a petroleum retail outlet.
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3. Mr. K.D.Chatterjee, learned counsel for the appellants, while assailing the aforementioned order of the learned Single Judge, has submitted that the allegation of adulteration in High Speed Diesel (HSD) against the respondent-writ petitioner in his petroleum retail outlet being so obvious and proven on the face of the record, the resultant order of termination of his petroleum retail outlet ought to have not been interfered in a mechanical manner on a mere alleged infraction of a directory provisions of the Marketing Discipline Guidelines, which at best is an executive instruction having no statutory force. In this Context he has placed reliance on the judgment of the Apex Court in the case of J.R. Raghupathy vs. State of A.P. & ors., reported in AIR 1988 S.C. 1681.
4. Drawing further inspiration from the judgment of the Apex Court in the case of Dalchand vs. Municipal Corporation Bhopal & anor., reported in A.I.R. 1983 S.C. 303, Mr. Chatterjee has submitted that the glaring facts of the case as with regard to discovery of an excess stock of 3292 liters on the date of surprise inspection of the petroleum outlet of the respondent- writ petitioner by 3 itself was demonstrative of irresistible conclusion that there was adulteration in the stock of diesel in the petroleum outlet of the respondent- writ petitioner and therefore, mere technicality ought to have not weighed in setting aside the order of termination of the dealership of the petrol pump of the respondent- writ petitioner. The core submission of Mr. Chatterjee, therefore, is that there was no error in the decision making process relating to termination of the dealership of the respondent- writ petitioner and therefore, the learned Single Judge ought to have avoided entering into the merits of the case and in this regard he had broadly canvassed the parameters under which judicial review can be made of an administrative action under Article 226 of the Constitution of India.
5. Per contra, Mr. Y. V. Giri, learned Senior counsel appearing on behalf of the respondent- writ petitioner while supporting the order of the learned Single Judge has submitted that the allegation of adulteration in the diesel supplied to the respondent- writ petitioner by the Indian Oil Corporation and the consequence of cancellation of his dealership being 4 crucial to the right of life guaranteed under Article 21 of Constitution of India as also to the right to carry trade and profession guaranteed under Article 19(1)(g) of the Constitution of India, any infraction of related marketing guidelines, by itself was sufficient to vitiate the decision making process and the resultant decision of cancellation of dealership of the respondent- writ petitioner. He has further submitted that the cancellation of dealership cannot be made on mere ipsi dixit or uncorroborated allegation, against respondent-writ petitioner. He has, accordingly, commanded to us to approve the view taken by the learned Single Judge in the impugned order also by placing reliance on the judgments of the Apex Court referred to in the impugned order in the case of Ex-Capt. Harish Uppal vs. Union of India & anor., reported in (2003) 2 SCC 45, Harbanslal Sahnia & anor. vs. Indian Oil Corporation Ltd. & ors., reported in (2003) 2 SCC 107, Food Inspector vs. G. Satyanarayana., reported in (2004) 13 SCC 72 and a judgment of this Court in the case of Nathmal Kabra & anor. vs. The State of Bihar, reported in 1990(1) PLJR 477.
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6. In order to appreciate the aforementioned contentions it would become necessary to take stock of the admitted facts inasmuch as most of them have gone un-noticed in the impugned order of the learned Single Judge.
7. On 20.9.2006 there was a surprise inspection in the petrol pump of the respondent- writ petitioner and a retail outlet inspection report in his presence and with his signature thereon was prepared by the joint inspection team of Mr. Niladri Banerjee, Senior Manager (Fleet Marketing), Eastern Range, and Mr. Alok Kumar Das, Manager (P & A), Eastern Region, wherein after making necessary entries in the prescribed proforma it was found that there was excess of 3292 liters in the stock of the respondent- writ petitioner. The inspecting team had also taken samples from the two high-speed diesel tanks of the respondent- writ petitioner and it was clearly mentioned therein that in the stock verification the variance was beyond permissible limit and samples were also collected for its being tested to check adulteration.
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8. Additionally, in the prescribed inspection report, as contained in Annexure 2, containing the signature of the writ-petitioner it was also mentioned that the employees of the respondent- writ petitioner were living inside the premises of the petroleum pump wherein three beds in two rooms were found which was in violation of the Explosive Rules under the Indian Explosive Act.
9. This note of inspection along with two samples were handed over to the petitioner by the inspecting team which had also immediately at the spot given a show cause notice to the petitioner asking him to explain the stock variation of diesel which was found to be beyond the permissible limit, variation being 3292 liters as also as to why his employees were living inside the premises of the petrol pump violating the Explosive Rules. It is very significant to note here that the inspecting team had given also the measurement of three totalisers as also tank-dip in the said show cause notice for which a reply was to be given by the respondent- writ petitioner within a period of 10 days.
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10. The spot show cause notice given by the inspecting team was followed by yet another show cause notice issued by the Divisional Manager of the Indian Oil Station at Patna dated 25th September, 2006 wherein on the basis of the same measurement already indicated in the inspection report handed over to the respondent- writ petitioner on 20.9.2006 it was analyzed and noticed that the density variation of tank No.1 being 17.9 gm/cc was also beyond permissible limit. The writ petitioner was again accordingly asked to explain within a period of seven days from the date of issuance of the show cause notice as to why necessary action should not be taken against him due to density variation.
11. It has to be noted that the respondent- writ petitioner did not choose to file any reply within the prescribed time limit which had expired on 27.9.2006 or 3.10.2006 whereafter the Divisional Manager at Patna having received the report of the laboratory with regard to sample collected at the petrol pump of the petitioner from Haldia had issued another show cause notice dated 4.10.2006 enclosing the test report of the sample wherein it was observed that the sample test of tank No.1 had 8 failed in Kinametic Viscosity and density corresponding to tank number did not match within the characteristic of the depot sample and the tank lorry retention sample. The 3rd show cause notice in fact, therefore, was confined soliciting the reply of the respondent- writ petitioner within a period of seven days from the receipt of the said show cause notice for explaining as to why action should not be taken against the respondent- writ petitioner due to failure of the sample in the test report of tank No.1.
12. The respondent- writ petitioner thus having before him not only on the spot inspection report made available to him at the spot on 20.9.2006 alongwith the first show cause notice, as also allegation with regard to density variation in the second show cause notice dated 25.9.2006 and the test failure report of the seized sample, chose to however give reply only to the first show cause notice dated 20.9.2006 on 10.10.2006 wherein it was stated that totaliser meter of the respondent- writ petitioner was not functioning since 12.8.2009, a fact which was already brought to the notice of the authorities of the appellant company for which reliance was placed 9 on the same report of the Maintenance Officials dated 25.8.2006.
13. The writ petitioner had however filed another show cause reply to the second notice dated 25.9.2006 on 16.10.2006 wherein some sort of criticism was made as with regard to allegation or density variation on the ground that the members of the inspecting team had not in their earlier show cause notice dated 20.9.2006 chosen to bring any such allegation and a specific demand made with a fresh density check by way of fresh inspection should be held again in presence of the respondent- writ petitioner.
14. Curiously the respondent - writ petitioner thereafter on 3.11.2006 had filed his another separate reply to the third show cause notice dated 4.10.2006 wherein he had admitted the delay on his part in filing his reply but had made a request for drawing of a fresh sample in his presence for its being subjected another laboratory test, inasmuch as he had put certain question marks, manner of collection of samples in course of inspection by the inspecting team on 20.9.2006. 10
15. A most significant fact in this respect to be noticed here is that the said request of the respondent- writ petitioner as with regard to another inspection was acceded and a fresh inspection was held on 10.11.2006 wherein the same reading of the three totalisers were again recorded by a set of different officials, namely, Mr. Nirmal Kumar, A.M.(E), Pat-II and Mr. P.S. Bhattacharjee, AM(E), PSO, who had also found the same measurement of the tank dip as recorded by the first inspecting team of Mr. N. Banerjee and Mr. A.K.Das. The second inspection in fact alike the first inspection was made in presence of the petitioner and both the inspection reports contains his signature in acknowledgement of the proof of such inspection being carried out at his petrol pump.
16. The respondent- writ petitioner thereafter had filed a further reply to the show cause notice dated 4.10.2006 on 27.11.2006 in which he had come out with the grievance that through the measurement was made by the second inspecting team but fresh sample from the retail outlet for the purpose of testing in terms of Clause 2.5(K) was not carried out and accordingly, a request 11 was made that appropriate steps should be taken for drawing fresh sample from the outlet of the respondent- writ petitioner for its being tested in his presence in accordance with Clause 2.5(K).
17. The respondent- writ petitioner thereafter had filed his further reply to the show cause notice dated 3.11.2006 and 27.11.2006 wherein again the same thing was repeated that fresh sample be drawn from his outlet for its being tested in the laboratory in his presence.
18. The competent authority of the appellant Oil Company, however, on 26.3.2007 having taken into account the stand taken by the respondent- writ petitioner in all the aforesaid show cause reply had issued a final show cause notice dated 26/28.03.2007 as to why his appointment of dealership should not be terminated for the reasons mentioned in the show cause notice.
19. The respondent- writ petitioner after service of this show cause notice dated 26/28.3.2007 had filed a writ application, C.W.J.C.No. 2455/2007 wherein he had made a prayer for quashing of the entire proceedings arising out of the joint inspection report dated 20.9.2006 and had also prayed that the suspension of sales and 12 supplies to the outlet of the respondent- writ petitioner should be quashed. This Court, however, by its order dated 10.8.2007 did not choose to interfere with on going proceedings or even restoring the supply of the retail outlet by lifting the suspension on sales and supplies and had disposed of the matter by making an observation that if the respondent- writ petitioner would submit its final show cause reply to the show cause notice dated 26/28.3.2007 the same should be considered within three weeks and should be disposed of in accordance with law as per Marketing Guidelines and if the matter was not finally decided within two months the supply to the retail outlet of the respondent- writ petitioner would be restored.
20. The respondent- writ petitioner thereafter on 4.9.2007 had submitted his final reply to the show cause notice dated 26/28.3.2007 which were followed by the reminders dated 13.12.2007 and 12.3.2008 for restoring supply and lifting the ban in terms of the order of the High Court, where-in-after the impugned order terminating the dealership of the respondent- writ petitioner was passed on 30.4.2008 and an appeal 13 preferred by the respondent- writ petitioner was also rejected by a reasoned order dated 15.9.2008 whereafter the connected writ application was filed on 16.10.2008 in which this Court by an order dated 22.10.2008 had refused to grant stay as prayed for by the respondent- writ petitioner and had only directed for maintaining status quo with regard to the site in question till further orders. The writ application was ultimately heard on different dates and was allowed on 23.7.2009 by holding that neither the charge of unexplained excess of 3292 liters of diesel nor charge of adulteration were conclusively proved and as such, the findings recorded by the authorities of the appellant were bad on both the counts.
21. Before us the same submissions were virtually reiterated which have been taken note of in the impugned order of the learned Single Judge but then Mr. Chatterjee has emphasized that the Marketing Discipline Guidelines in Clause 2.5 cannot be read as mandatory, inasmuch as there is a discretion vested in the competent authority as with regard to retesting or fresh testing of the samples. He has also submitted that the respondent- writ petitioner 14 in fact was all along pressing for a fresh testing of a fresh samples to be taken out in terms of Clause 2.5(K) of the Marketing Discipline Guidelines (hereinafter referred to as „the Guidelines‟) and in this context he has sought support from the various replies filed by the respondent- writ petitioner to which we would readably refer to after noticing the provisions of the Guidelines.
22. It would be significant to note here that the Guidelines under Chapter-2 lays down the manner of sample collection and testing, described therein as 3-tier sampling system which begins with a preamble under Clause 2.1 that the basic objective of the 3-tier sampling procedure is to ensure that the petrol and diesel sold by the retail outlet is the same product which has been supplied to them in respect of oil companies. Such sampling procedure in fact has been laid down to help in establishing whether malpractice/ adulteration, if any, has taken place at the retail outlet during transportation or at supply locations. Clause 2.2. lays down the places where the samples would be drawn i.e. at supply location and at retail outlets. Clause 2.3 relates to drawal of samples by dealer/ his representative and clause 2.4 lays 15 down drawal of samples by oil company‟s representative within 48 hours of supply or before next load is received by the retail outlet in case of suspected malpractice and adulteration. In this respect in the case at hand we are concerned with clause 2.4.2, inasmuch as it was the oil company‟s representative who had resorted to his power of drawal of samples. Clause 2.4.2 reads as follows:
" 2.4.2 HSD- Oil Company Representative should collect three samples of 1 litre each from each tank of the ROs. One sample is to be retained by the dealer, one sample at Division/ Territory/ Regional Office and one sample sent to the oil industry marketing laboratory for testing It would be the responsibility of the Oil Company representative drawing the sample to ensure that the following samples are collected and sent to the Oil Industry Marketing Laboratory for clinical tests.
(i) One (1X1 litre) samples of each tank drawn by him from the RO
(ii) One (1X1 litre) tank lorry sample of last supply which was drawn and retained by the dealer for each tank (this should pertain to the tank which is connected to the dispensing unit from which the samples were taken by Oil Co. representative).16
(iii) One (1X1 litre) reference sample of the supply location. This sample should be the one which is from the same tank from which the supply was made to the RO dealer and tank reference of which was mentioned on the delivery documents covering the supply to the Retail Outlets. If the RO has more than one tank for HSD and the last receipt of each of these tanks were on different days, corresponding reference sample of the supply location for these supplies would have to be collected and sent for testing.
All the above samples should reach the laboratories for testing preferably within ten days of the collection of the samples."
23. It is thereafter that clause 2.5 has been provided in the guidelines as general points to be observed in all cases which reads, inter alia:
" 2.5 General points to be observed in all cases A) All samples should preferably be suitably coded before sending to lab for testing within 10 days of drawal.
B) If all the sample passes the test, dealer should be intimated in writing and all pertinent retention samples at ROs.
Divisions/ Territory/ Regional and dispatch 17 locations can be disposed off.
C) If the sample fails, explanation of the dealer/ transporters as applicable shall be called for in writing, giving details of failure and enclosing copy of the test report. In case, the explanation is not found satisfactory, appropriate action to be initiated against dealer/ transporter.
D) In case of sample failure in the event of request for testing by the dealer, the same to be considered on merits by the State Office/ Regional/ Zonal General Manager of the concerned Oil Company. If approved by GM the sample of retail outlet retained by the dealer along with the counter sample retained with the Field Officer/ Oil Company are to be tested as per the guidelines, preferably in presence of the Field Officer, RO dealer/ representative and representative of QC Dept. of the Oil Co. after due fertification of the samples. All the 3 samples should be tested only in the same lab. and if possible by the same person to ensure repeatability and reproducibility. The expenditure incurred for such testing should be recovered from the dealer. The decision of the GM which would be based on the test results of all the 3 samples would be decisive and binding on all.
18E) Wherever dealer and transporter are the same, action needs to be taken against the dealer in his capacity as dealer or the transporter as the case may be in the event of sample failure.
F) Wherever tank lorry sample is not retained/ made available by the dealer to the inspecting officials at the time of drawal of sample from the RO, the same would not be considered for testing at the later stage. In such case, the result of the RO sample will be compared with the supply point sample and action of any will be initiated against the dealer only.
G) In case of density/ filter paper test failure, clinical test failure by mobile lab. sales and supply of all products will be suspended and samples will be drawn and send for testing. Laid down procedure will be followed and appropriate action will be taken based on the outcome of the test results.
H) In case routine samples drawn from the retail outlet fail, appropriate action will be taken against the dealership. Any unsold off spec product at the retail outlet will be appropriately disposed off by the concerned oil company before sales is recommended at the RO.
I) The purpose of mentioning time frame for various activities e.g. sending samples to lab 19 preferably within 10 days etc. is to streamline the system and is no way elated to quality/ result of the product.
J) Whenever any one agency has detected any irregularity on account of quality and initiated investigation, parallel investigation by way of drawal of samples will not be carried out during pendency of the proceedings.
K) In all cases where the samples are found to be off-spec a subsequent sample should be drawn from the same RO within 3 months from the date of test report of the earlier sample."
24. To complete the scope of guidelines it is just and proper to also refer to clause 2.6 which mentions about sample containers to be used, Clause 2.7 the manner of sealing of sampling containers, clause 2.8 is with regard to sample tags, clause 2.9 is with regard to retention of samples at supply locations and at retail outlets as also at Divisional/ Territory/ Regional Office of the Oil Company and clause 2.10 relates to sample testing and results.
25. In the light of the aforementioned provisions if we look into the stand taken by the respondent- writ petitioner in his different communications by way of 20 reply to the show cause notice it would become manifest that what he was actually always aiming at was a fresh collection of samples, inasmuch as upon receipt of the show cause notice dated 4.10.2006 with the test report of the laboratory when he had filed his show cause reply on 3.11.2006 he had straightway questioned the manner of collection of samples on 20.9.2006 in the following terms:
" 10. That the manner in which the samples have been drawn from the 2 underground tanks and sent for laboratory test is not full proof and is susceptible to give incorrect findings.
11. That the retail outlet in question supplies only such diesel which it receives from the Company and thus there is no reason for variation in the standard level in viscosity unless the quality of the diesel supplied itself is effected.
12. That in this context it would also be necessary to bear in mind that the viscosity level of each consignment of diesel received by the outlet varies from tanker to tanker and does not have identical viscosity for each land.
In the same tank various load are received from time to time resulting in a 21 composite mixture of product. This sample will obviously have deferent character as compared to the reference sample with regard to parameters, such as viscosity etc.
13. That the second infirmity in the manner of drawing sample is that the stock available in tank no.1 was very low on the date of inspection and in normal circumstances the reports of samples taken from low level of stock does not give the correct picture and it is in this view that the sample report of tank no.2 which had substantial stock available, was within prescribed limits.
14. That the report is also not sustainable in view of the position explained in response to the show cause notice dated 25.9.2006 in relation to charge of variation in density and which reply dated 16.10.2006 may treated to be a part of this reply since the issue is more or less the same.
15. That the next infirmity in the sample drawing process by the inspecting team is that all the samples were signed and sealed. Though the team mentioned the seal number on the sample handed over to the undersigned but they did not give any paper or document containing the number of the plastic seal affixed on the samples which was taken by them although signature was obtained from the undersigned on the 22 samples taken by them.
16. That another aspect of the matter is that there is no equipment provided at the retail outlet by the company to check the quality of the diesel supplied at the retail outlet by the tank lorries.
17. That as already indicated above, the retail outlet in question sells only such diesel which is supplied by the Company and at no stage any kind of discrepancy in quality and quantity of diesel has been found by the company. In fact the General Manager has duly certified the product of the retail outlet in relation to its quality and quantity."
26. It is in this background that the stand taken by the petitioner in paragraphs no. 19 and 20 of his show cause reply dated 3.11.2006 have to be understood which reads as follows:
19. That in view of the infirmities pointed out hereinabove, the reliability of the samples taken a way for testing is questionable and in which view the sealed samples handed over to the undersigned may be tested for determination of viscosity in the presence of the undersigned.
20. That in view of the aforementioned position alternatively it is humbly submitted with reference to clause 2.5(K) of the MDG‟2005 that a fresh sample be drawn 23 from the outlet and send for test to be conducted in the presence of the undersigned, since the earlier test report has not been conducted in my presence and as such its reliability is questionable."
27. From the conjoint reading of the stand of the writ petitioner it, therefore, becomes clear that he always wanted to have fresh samples collected from the outlet for its being sent for test report to be conducted in a laboratory in his presence doubting the earlier test report on various grounds including its being not tested in his presence. Such emphasis of the respondent- writ petitioner on a fresh test in terms of clause 2.5(K) gets also demonstrated from his further reply filed on 27.11.2006 wherein while acknowledging the measurement of second inspection held on 10.10.2006 pursuant to his request he has stated as follows:
"1. That I had specifically requested in the light of submission made in the said reply that a fresh sample be drawn from my outlet and sent for test, to be conducted in my presence or the sealed sample handed over to me may be sent for test.
2. That in the light of the reply filed by the undersigned and the request made thereunder to officials of your company namely Sri 24 Nirmal Kumar and Sri P.S. Bhattacharjee visited the retail outlet in question and have taken the totaliser meter reading and dip reading of the tanks on 10.11.2006 and have found the readings correct and the same as existing on the date of inspection. They have also found the Weights and Measures seal and the Totaliser seal intact in all the three dispensing units (copy of the report dated 10.11.2006 enclosed)
3. That although the aforementioned steps were taken by the officials of your company in the light of the request made by the undersigned but unfortunately the most important part has not been done by them namely the drawing of fresh sample from the retail outlet for the purpose of testing in terms of Clause 2.5(K) of the MDG-2005 in the presence of the undersigned."
28. Yet again in his further reply dated 27.1.2007 it was stated by him as follows:
"6. That although the aforementioned steps were taken by the officials of your company in the light of the request made by the undersigned but unfortunately the most important part has not been done by them namely the drawing of fresh sample from the retail outlet for the purpose of testing in terms of clause 2.5(K) of the MDG-1005 in 25 the presence of the undersigned.
7. That in terms of clause 2.5(K) of the MDG-2005, where the sample drawn are found off-spec, a subsequent sample has to be drawn from the same retail outlet within 3 months from the date of test report of the earlier sample.
8. That the alleged test report has been forwarded by you alongwith your letter dated 4.10.2006. The period of 3months has already expired in terms of the provision stipulated under clause 2.5(K) of the MDG,2005 and no subsequent samples has been drawn from the retail outlet as required thereunder.
9. That in this context it is stated that the provision of clause 2.5(K) of the MDG,2005 requiring a subsequent sample test drawn from the retail outlet apparently mandates that the supply to the retail outlet should not be stopped."
29. Such emphasis of the respondent - writ petitioner for fresh collection of sample and its being sent for test report in his presence gets further established from the passage of the order of this Court dated 10.8.2007. At a point of time when he had not filed his final show cause reply in terms of the final show cause notice dated 26.3.2007 this Court in the order 26 dated 10.8.2007 in fact had noted the submission of the learned counsel for the respondent- writ petitioner which were exclusively confined to conducting of another test as has been noted in the said order, the relevant portion thereof reads as follows:
" This application has been filed by the petitioner for a direction to the respondents company to reinstate supply to retail outlet. So far final decision taken by the company relating to different test which have been conducted counsel for the petitioner has tried to emphasize that the discrepancies having found in all test report and his representative for sending the samples for another test as provided under Clause 2.5K of the Marketing Guidelines has not been sent, since more than three months time have lapsed hence supply should be made by the company to its retail outlet."
30. In fact such approach of the respondent- writ petitioner for having another test conducted is fully demonstrated even in the final show cause reply filed by him after disposal of his first writ application while submitting his exhaustive reply in response to the final show cause notice dated 26.3.2007, wherein in paragraphs 30, 35 and 37 he had concentrated on the 27 violation of Clause 2.5(K) in the following words:
"30. That with regard to the charges made in paragraph (iii) of the show cause notice under reply it is stated that the position has been suitably explained by the Noticee in his replies dated 16.10.2006 (Annexure 6), 3.11.2006 (Annexure 8), 27.11.2006 (Annexure 11), 27.1.2007 (Annexure 12) with reference to paragraph 2.5K of the MDG-2005 (Annexure 9) and the judgment of the Hon‟ble High Court as contained in a Annexures 13 and 15 herein and which the Noticee adopts and reiterates in response to the charges and prays that the proceedings be dropped since the competent authority despite being noticed about the provisions of 2.5K of MDG-2005 did not bother to take any step for drawing fresh sample within the stipulated period of three months as provided in the said provision and which has render the entire proceedings bad in law and fit to be dropped.
35. That although the request of the Noticee for carrying out fresh test in terms of paragraph 2.5K of MDG-05 has been turned down mechanically but it is stated that the same is unsustainable since the company is bound to follow its own guidelines and once the request has been made by the Noticee in this regard the company cannot shirk away 28 from the said responsibility on innocuous grounds and is bound to carryout the same.
37. That the very fact that the Divisional Manager, PDO, Patna avoided to take steps for drawing fresh sample in the light of the provision of 2.5K of MDG-05 itself demonstrated that he was not sure of the findings of the test report conducted by them as contained in Annexure 3. Had the Divisional Manager being sanguine of the said report as contained in Annexure 3 he would have immediately accepted the request of the Noticee and drawn fresh samples by following the procedure of paragraph 2.5K."
31. It is to be noted that this issue with regard to alleged violation of the provisions of clause 2.5(K) has been dealt by the original authority in the impugned order dated 30.4.2008 in the following manner:
" As regards para 2.5K of MDG-2005, it has already been clarified in the counter affidavit filed by the respondents (IBP Co.Ltd.) in CWJC No. 2455 of 2007 and it is once again clarified that this provision refers to the situation wherein RO Sales and Supplies are liable to be restored on account of failure of TT retention alon with RO sample. In this case your RO sample has failed whereas TT and supply location samples have passed in lab test."29
32. This issue with regard to violation of clause 2.5(K) raised before the appellate authority was also answered in the following terms:
"Regarding non acceptance of testing under clause 2.5K Corporation has rightly stated that this clause is applicable when sales and supplies of the RO are liable to be restored on account of failure of TT retention sample along with the RO sample."
33. In the light of the aforementioned admitted facts that the respondent- writ petitioner in fact never wanted retest of the sample handed over in his custody, also gets reflected from the pleadings made in the writ application in paragraph no. 89, which reads as follows:
"89. That no reasonable explanation was given by the respondent Executive Director to the issues raised on behalf of the petitioner. In fact the explanation given for not following the procedure provided under Clause 2.5K of the Guidelines is preposterous. No such stipulation is present in Clause 2.5K which says that only in cases where the supplies are to be restored that the department would undertake the procedure provided under 2.5K."
34. Unfortunately the issue which was all along been pressed by the respondent- writ petitioner as with 30 regard to first test in terms of Clause 2.5(K) was given up and in stead a thread was picked up by him that his request for sending the sample collected from his premises on 20.9.2006 was not accepted for retest in terms of clause 2.5D. In the opinion of this Court this last minute change of shifting plea of the respondent- writ petitioner ought to have been straight way rejected both in view of the fact that he had already abandoned this plea while not pressing the same in his first writ petition on the subject wherein as noticed above, he had concentrated only for a fresh test in terms of clause 2.5(K) and had never made any prayer for directing the authorities to hold retest of the sample under over to him.
35. That apart the guidelines under clause 2.5 if read in tandem would reflect that it is by way of an instruction to the departmental authorities for observing the procedure of sampling and its being sent for test. That is how in clause 2.5A it has been provided that the sample should be suitably coded before sending to the laboratory for testing within 10 days of the drawal. Clause 2.5B provides that if the sample is found to be in 31 order in the laboratory test the dealer should be intimated in writing and the information to the same effect should be given to all other places where the samples have been retained. Clause 2.5C and D are the provisions in which the test report of the sample test is found to be adverse and the provision has been made for calling explanation in writing giving details of failure and enclosing copy of the test report. Thus, clause 2.5C also is only an instruction with regard to a condition in which the laboratory test is adverse which only envisages the compliance of principles of natural justice by way of supply of the test report as also considering the explanation submitted by the dealer in respect of such adverse test report. It for the sake of clarity the same is being again reproduced which reads as follows:
"C) If the sample fails, explanation of the dealer/ transporters as applicable shall be called for in writing, giving details of failure and enclosing copy of the test report. In case, the explanation is not found satisfactory, appropriate action to be initiated against dealer/ transporter."
36. The significance of Clause 2.5D has to be understood in the context of Clause 2.5C providing inter 32 alia:
"D) In case of sample failure in the event of request for testing by the dealer, the same to be considered on merits by the State Office/ Regional/ Zonal General Manager of the concerned Oil Company. If approved by GM the sample of retail outlet retained by the dealer along with the counter sample retained with the Field Officer/ Oil Company are to be tested as per the guidelines, preferably in presence of the Field Officer, RO dealer/ representative and representative of QC Dept. of the Oil Co. after due fertification of the samples. All the 3 samples should be tested only in the same lab. and if possible by the same person to ensure repeatability and reproducibility. The expenditure incurred for such testing should be recovered from the dealer. The decision of the GM which would be based on the test results of all the 3 samples would be decisive and binding on all."
37. In the considered opinion of this Court clause 2.5D in contra distinction in clause 2.5C cannot be held to be mandatory. Furnishing an adverse report and giving explanation is a condition precedent before taking any action (which may not be cancellation of dealership only) but any other penal action whereas the language 33 used in clause 2.5D makes itself clear that if there is a request for testing by the dealer of the sample retained by him the same has to be considered on merits by the competent authority and expression „if approved‟ goes to show that there is a wide discretion vested in the authority even not to allow such request. In that view of the matter, this Court would find it difficult to uphold the following finding of the learned Single Judge as with regard to non-compliance of the provisions of clause 2.5D which has been held to be mandatory in the following terms:
" From the above, it would be seen that the Marketing Discipline which provides for and lays down the procedure for sampling and action to be taken thereafter clearly provides for taking 3 samples. This was done in the present case. One sample, as provided in the Guidelines, was sent for testing. One was given to the dealer and the other retained by the Oil Company. A reference to clause 2.5D would show the purpose why 3 samples are taken. It gives a right to the dealer to ask for retesting of the contemporaneous samples in his presence at the same place. This is so because the consequences are drastic. The dealer, if found guilty of adulteration, looses 34 his bread and butter by termination of his dealership. That is the only safeguard that is available to a dealer. Here, in the present case, the dealer did request for retesting. The same was refused on the ground that the excess stock clearly indicated adding of adulterant and, thus, adulteration was confirmed and no useful purpose would be served. As pointed out above, the allegation of excess stock is not sustainable. It is then argued by the respondents that it was the discretion of the authority to permit retesting or not. In my view, this is not the correct position. Where a procedure has been prescribed, authorities are bound to follow the procedure as all other procedures are prohibited. Where a duty is cast to do an act then authorities must do such an act especially when the consequences of not doing so are grave."
38. In the considered opinion of this Court what has been held by the learned Single Judge would make not only clause 2.5D a mandatory provision, which it is not, but would also change the Scenario, inasmuch as the writ petitioner himself never wanted the retest and his stand taken in paragraph 90 of the show cause reply dated 3.11.2006 to say the least if read together in 35 tandem with his earlier paragraphs 8 to 18 would go to show that he was himself doubting the manner of collection of samples and therefore, he had actually never wanted recheck of the same sample and his effort on ways was for a fresh sample collection and its being sent for fresh laboratory test to be conducted in his presence.
39. This Court would also not find any error in the plea of the appellants in the final show cause notice as with regard to retesting, inasmuch as the competent authority having taken into account that there was no merit in the substance in the said request the retention sample was not tested. This fact of the decision of the authority in the show cause notice dated 26.3.2007 was made known to him while his first writ petition was pending, inasmuch as the writ Court had taken notice of the show cause notice and had given an opportunity to file his show cause reply as is clear from the order dated 10.8.2007 and if even at that point of time he had abandoned to press this issue, he could not have been allowed to raise it in the second round of litigation. 36
40. In the opinion of this Court the provision of clause 2.5D is of course by way of an additional opportunity to the dealer to question the authenticity and correctness of the test report, which is by way of adherence to the principles of natural justice requiring affording an opportunity to a dealer who is subjected to an adverse order on the basis of any particular material. In compliance of principles of such natural justice, the Courts have invariably also applied the issue of prejudice as was held by the Constitution Bench in the case of Managing Director, ECH, Hyderabad & ors. vs. B. Karunakar & ors., reported in (1993) 4 SCC 727.
41. The matter can be viewed still from another angle, inasmuch as there were two charges against him, namely, unexplained excess stock of 3292 liters of diesel in his stock on the date of inspection as well as adulteration. It has to be kept in mind that such unexplained excess of stock had been provided without doubt, inasmuch as when the respondent- writ petitioner had questioned the finding by seeking re-inspection which was also allowed by the appellant company by seeking fresh set of personnel for holding inspection on 37 10.10.2006 the same measurement was found by the authority. That would demonstrate that since the respondent- writ petitioner had 16930 liters of stock the maximum quantity that should be sold by him is 48258 liters giving the fact that he had an opening stock of 5188 liters and had taken supply of 16000 liters from the oil Company but on the date of inspection i.e. 20.9.2006 such stock was found to be 51500 liters giving in excess 3292 liters. This by itself was sufficient to indicate even adulteration because it is the case of the respondent- writ petitioner that he had been receiving supplies only from the Indian Oil Company.
42. In that view of the matter as well the finding arrived by the learned Single Judge as with regard to excess of stock only on the ground of non-functioning of the totaliser meter or its behaving erratically to cause such a huge difference. It has to be always kept in mind that if the totaliser meters were not functioning the respondent- writ petitioner should not have been satisfied by only writing letters but keeping dire consequences in his mind he ought to have immediately stopped business operations in stead of supplying diesel 38 to the common people with the alleged defective totaliser meter. This aspect of the matter in fact has also been gone into by the original authority who has recorded his following finding in this regard:
" Stock variation: Stock variation beyond permissible limits can not be attributed to so called defective totaliser of MIDCO 172 unit (represented by Du no.3 in the inspection report) as no variation has been recorded in the Daily Sales Record maintained by you. It is pertinent to mention here that on 12.8.2006, you were advised specifically (recorded on your DSR) that loss/gain column of the DSR should be filled. As you have maintained no record of any loss/grain in the DSR, it is established that the stock variation is not due to defective totaliser but due to adulteration of product at your RO and that is why it has not been reflected in the DSR.
It is also pertinent to mention here that three dispensing units had been provided to your RO for HSD and in case of any observed deficiency in any one unit, the sales could and should have been affected from the balance two dispensing units only and the so called defective dispensing unit should not have been operated."39
43. It has to be kept in mind that when the said finding was again assailed by the respondent- writ petitioner before the appellate authority he too having made his separate consideration had found no merit in the defence of the respondent- writ petitioner and had rejected the same by holding as follows:
" As per the appellant, on finding that the totaliser is not working uniformly he intimated the Corporation and continued with operating the DU as there was no instruction from the Corporation to stop the sales through this DU. This contention of the appellant cannot be accepted as it has been made clear under various clauses of Dealership Agreement and MDG 2005 that defective equipments are not to be used and thus no specific instruction in this regard was required. The appellant also did not adhere to specific instruction of Corporation given on 12.8.2006 to mention loss/grain in the DSR on daily basis."
44. A question, therefore, would be when the learned Single Judge has not at all looked into the aforesaid findings and has reached to his own conclusion, can it be said to be permissible within the limited scope of judicial review of an administrative 40 action under Article 226 of the Constitution of India?
45. This issue should not detain us any longer, inasmuch as this Court is not sitting as an appellate authority to the decision taken by the Indian Oil Corporation and its limited judicial review would be as to whether the findings arrived by the authorities are so perverse that no reasonable man could have ever reached to the same. This Court will not go into the sufficiency of evidence and especially when the issue would relate to adulteration of the public consumables.
46. In this context, we may refer with profit the decision in State of U.P. and others v. Maharaja Dharmander Prasad Singh etc., AIR 1989 S.C. 997, wherein the Apex Court has expressed thus:
"28. It not unoften happens that what appears to be a judicial review for breach of natural justice is, in reality, a review for abuse of discretion. It is true that amongst the many grounds put forward in the show cause notice dated 19.1.1986, quite a few overlap each other and are distinguishable from those urged for the cancellation of the lease itself. Some of the grounds might, perhaps, be somewhat premature. Some of them even if true are so trivial that no authority could 41 reasonably be expected to cancel the permission on that basis. For instance the ground that the permission was applied for and granted in the name of one only of the two lessees would be one such.
However, judicial review under Article 226 cannot be converted into appeal. Judicial review is directed, not against the decision, but is confined to the examination of the decision- making process. In Chief Constable of the North Wales Police v. Evans, (1982) 1 W.L.R. 1155 refers to the merits-legality distinction in judicial review. Lord Hailsham said:
"The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court."
Lord Brightman observed:
" .... Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made...."
And held that it would be an error to think:
".... That the Court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the 42 decision itself."
When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant, factors or is so manifestly unreasonable that no reasonable authority, entrusted with power in question could reasonably have made such a decision, the judicial review of the decision-making process includes examination, as a matter of law, of the relevance of the factors. In the present case, it is, however, not necessary to go into the merits and relevance of the grounds having regard to the view we propose to take on the point on natural justice."
47. We have referred to the aforementioned decision only to highlight that there was no error in the decision-making process and the reasoned order passed by the authorities and its affirmation in appeal would leave little for a writ Court to make a judicial review on merits of such decision. A highly technical issue as with regard to adulteration of diesel adjudicated by the competent authorities of the Indian Oil Corporation in the light of guidelines cannot be interfered by this Court in exercise of power under Article 226 of the 43 Constitution of India on mere presumptions.
48. In this context the reliance placed by the learned Single Judge on the judgment of this Court in the case of Nathmal Kabra & anor. vs. the State of Bihar, reported in 1990(1) PLJR 477, in exercise of appellate power under section 374 of the Code of Criminal Procedure pertaining to an order of conviction and sentence in a criminal case could not have been made applicable, especially when the finding of the authorities as with regard to adulteration was clear and un- impeachable bereft of even dip rod method. In the case of Nathmal Kabra (supra) the prosecution had rested its case with regard to excess of stock of kerosene oil by applying the dip rod measurement system and the prosecution witnesses had admitted that they had neither measured the actual capacity nor were aware of the dimensions. On this admitted analogy emanating from the evidence in the trial in a criminal case where the onus heavily lies on the prosecution to prove its case beyond reasonable doubt the conviction and sentence was set aside by this Court on scanning of the evidence in exercise of appellate power. In our considered opinion 44 the judgment of Nathmal Kabra (supra) would be of little assistance to the issues involved in this case.
49. As noted earlier, the violation of Clause 2.5D was also not clearly established by the respondent- writ petitioner, inasmuch as he had all along been pressing for a re-sampling and not for getting the earlier sample re-checked. There is a world of difference between request that was being made by the writ petitioner and inference which has been drawn by the learned Single Judge in respect of violation of Clause 2.5D. It is not in doubt that the respondent- writ petitioner had received the sample on the date of inspection i.e. 20.9.2006 as also report on 4.10.2006 but he did not challenge the content of that report nor did he press for sending his specimen for a re-check and it was only in a casual manner that while filing the show cause reply while scanning his grievance as with regard to re-sampling being not done he had also desired that the sample earlier collected and retained by him ought to have been sent for a re-check.
50. It has to be also kept in mind that clause 2.5D is not mandatory in nature that as soon as a request is 45 made the same has to be sent for re-check, inasmuch as the authorities have to be satisfied as with regard to challenge to the report of laboratory. Had the respondent- writ petitioner challenged the report of the laboratory of the India oil and by un-impeachable evidence including getting the same tested through his own agency and bringing forward to framing the reports probably the authorities of the Indian Oil Corporation could have been under an obligation to go for a re-check of the sample but when the respondent- writ petitioner himself did not ask for the same in a clear and categorical manner and maintain silence for more than a month before coming out with a show cause reply, the alleged violation of Clause 2.5D by itself could not have been made the sole ground to set aside the impugned order terminating the dealership of the respondent- writ petitioner.
51. The reliance placed by the learned Single Judge on a judgment of Ex- Capt. Harish Uppal vs. Union of India & anor., reported in (2003) 2 SCC 45, in the context of the present case seems to be inappropriate, inasmuch as the issue involved in the case of Harish 46 Uppal (supra) was with regard to as to whether the lawyers have a right to strike or to give a call for boycott of courts. It was in that context where the competing rights of the litigant and the alleged rights of the lawyers were being considered by the Apex Court that the Apex Court had made observation as quoted by the learned Single Judge in the impugned order but if paragraphs no. 30 and 31 of the same judgment is read in tandem it would become clear that the issue was altogether different, inasmuch as it was held therein that:
"30. Whilst we appreciate the efforts made, in view of the endemic situation prevailing in the country, in our view, the above resolutions are not enough. It was expected that the Bar Council of India would have incorporated clauses as those suggested in the interim order of this Court in their disciplinary rules. This they have failed to do even now. What is at stake is the administration of justice and the reputation of the legal profession. It is the duty and obligation of the Bar Council of India to now incorporate clauses as suggested in the interim order. No body or authority, statutory or not, vested with powers can abstain from exercising the powers when an occasion warranting such exercise arises. Every power 47 vested in a public authority is coupled with a duty to exercise it, when a situation calls for such exercise. The authority cannot refuse to act at its will or pleasure. It must be remembered that if such omission continues, particularly when there is an apparent threat to the administration of justice and fundamental rights of citizens i.e. the litigating public, courts will always have authority to compel or enforce the exercise of the power by the statutory authority. The courts would then be compelled to issue directions as are necessary to compel the authority to do what it should have done on its own.
31. It must immediately be mentioned that one understands and sympathizes with the Bar wanting to vent their grievance. But as has been pointed out there are other methods e.g. giving press statements, TV interviews, carrying out of court premises banners and/or placards, wearing black or white or any colour armbands, peaceful protest marches outside and away from court premises, going on dharnas or relay fasts etc. More importantly in many instances legal remedies are always available. A lawyer being part and parcel of the legal system is instrumental in upholding the rule of law. A person cast with the legal and moral obligation of 48 upholding law can hardly be heard to say that he will take the law in his own hands. It is therefore time that self-restraint be exercised."
52. Mr. Giri, learned Senior counsel for the respondent- writ petitioner while supporting the view of the learned Single Judge as with regard to re-testing had submitted that if the second retesting of the sample preserved by the respondent- writ petitioner was done the allegation of adulteration of diesel against him could have been automatically ruled out. In that context he had also placed reliance on the judgment of the Apex Court in the case of M/s Gupta Chemicals Private Ltd. & ors. vs. State of Rajasthan & anor., reported in 2002(5) Supreme 549, by drawing an analogy that there also the Apex Court had found that the failure of second testing to be fatal. In the opinion of this Court the judgment of the Apex Court in the case of Gupta Chemicals (supra) was with reference to section 24 of the Insecticides Act which reads as follows:
" 24. Report of Insecticide Analyst.-(1) The Insecticides Analyst to whom a sample of any insecticide has been submitted for test or analysis under sub-section (6) of section 22, shall, within a period of sixty days, deliver to 49 the Insecticides Inspector submitting it a signed report in duplicate in the prescribed form.
(2) the Insecticide Inspector on receipt thereof shall deliver one copy of the report to the person from whom the sample was taken and shall retain the other copy of use in any prosecution in respect of the sample. (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticides Inspector or the court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report. (4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-
section (3) notified his intention of adducing evidence in controversion of the Insecticides Analyst‟s report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to 50 the said laboratory, which shall make the test or analysis and report in writing signed by, or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein.
(5) The cost of a test or analysis made by the Central Insecticides Laboratory under sub- section (4) shall be paid by the complainant or the accused, as the court shall direct."
53. From the aforementioned provisions it would be clear that the report of Insecticides Analyst conducted by the Central Insecticides Laboratory is supposed to be conclusive evidence of the facts stated therein unless the person from whom the sample was taken within 28 days of the receipt of a copy of the report notified in writing to the Insecticides Inspector or to the court before which any proceeding in respect of sample are pending that he intends to adduce evidence in controversion of the report. Thus, from the aforementioned clear provisions of the Insecticides Act and its being compared with Clause 2.5D of the Guidelines of the Indian Oil Corporation it would become clear that whereas for the penal consequences to be followed under the Insecticides Act a right has been created for controverting the report, 51 no such right can be read into under clause 2.5D of the Act. In that view of the matter, the judgment of M/s Gupta Chemicals (supra) also is of no help to the respondent- writ petitioner which in fact was rendered again in the case of prosecution followed by the punishment under the penal laws.
54. Counsel for the respondent- writ petitioner had also placed his reliance on the judgment of the Apex Court in the case of Harbanslal Sahnia & anor. vs. Indian Oil Corporation Ltd. & ors., reported in (2003) 2 SCC 107, to contend that when the sample test carried out was in violation of the instructions contained in the Government order it could not have resulted into termination of dealership of the petroleum product. In the opinion of this Court the facts of the case of Harbanslal Sahnia (supra) was altogether different wherein the only infirmity found in the sample in the laboratory test report was that of automatic viscosity which was found to be 1.758 in place of permissible range of 1.8 to 5.0. In that context the Apex Court had held that since the strength and friction of petrol and diesel change after ten days a time limit of ten days is 52 fixed for testing of such product but such order of the Government of U.P. was not followed and in that context the Apex Court had held as follows:
"5. It is submitted by Shri P.P. Malhotra, the learned Senior counsel for the appellants that the dealership has been terminated on irrelevant and non-existent grounds and, therefore, the order of termination is liable to be set aside. The Government of Uttar Pradesh has issued directions to all the District Magistrates of the State in the matter of taking of samples and carrying out tests. There are two government orders issued, namely, No. 1459/29-7-97-731-PP dated 25.4.1997 and No. 2722/29-7-2000-PP/2000. The orders state inter alia that the strength/ frictions or petrol and diesel change after ten days and therefore a time-limit of ten days is fixed for testing of such products. It is also emphasized that in the interest of natural, the inspecting officials should test the sample for quality and density at the retail outlet itself in the presence of the dealer with necessary equipments such as filter paper, hydrometer, thermometer, jar and the conversion table which are available at the retail outlets and record density thereat only in the presence of the dealer. These government orders were violated in respect of the sample taken on 53 11.2.2000. Firstly, the rest was not carried out at the retail outlet itself and, secondly, the time gap between the sample taken and the lab test carried out is of about a month which is capable of causing marginal variation as detected. The learned Senior counsel for the appellants invited attention of the Court to an order dated 24.10.2002 passed by the Commissioner, Nainital in an appeal preferred against the suspension of the petitioners‟ licence which too was founded on the test report of the sample taken on 11.2.2000. Impressed by non- compliance with the instructions contained in the government orders and the delay in carrying out the lab tests, also keeping in view the previous performance of the petitioners, the learned Commissioner has allowed the appeal and set aside the suspension as also the find imposed on the petitioners. The learned counsel is right in submitting that in view of the abovesaid facts, the failure of the sample taken from the appellants‟ outlet on 11.2.2000 becomes an irrelevant and non-existent fact which could not have been relied on by the respondent Corporation for cancelling the appellants‟ licence.
6. As already stated, the cancellation is founded solely on the failure of the 54 appellants‟ sample. Non-cooperation and discourteous behaviour of the appellants has been alleged in a very general way without specifying what was the non-cooperation and what was the discourtesy shown to the officers of the respondent Corporation. The deficiency in sales is also generally stated without particularizing the same. So is the case which deficiency in maintaining the records. Be that as it may, these are the grounds which formed the subject matter of the earlier show cause notice which was not persuaded. In all probability, the respondent Corporation felt satisfied with the explanation furnished by the appellants. The order of termination is certainly not founded on these grounds and, therefore, this aspect need not be pursued further. It may be stated that the appellants have volunteered to file a statement made on affidavit during the course of hearing before this court, expressing regrets for any incident of departure from normal behaviour and courtesy expected of the appellants towards the officials of the respondent Corporation and submitting that it might had happened inadvertently but in the future the appellants would be more careful and shall show full regards to the visiting officials of the respondent Corporation and extend their full 55 cooperation in their dealings with the respondent."
55. This Court would fail to understand as to how the ratio of case of Harbanslal Hahnia (supra) would apply to the present case, inasmuch as in that case it was the governmental authority which had conducted inspection, search and seizure and had sent sample to a laboratory by violating the Government instruction. The non-observance of the Government Guidelines having been found to be writ large on the face of record the Apex Court had held that on such faulty laboratory report the Indian Oil Corporation could not have acted upon by cancelling the dealership of the petroleum outlet. In the present case it is the authorities of the Indian Oil Corporation who as per Guidelines had made the inspection, search and seizure and had sent the same to its own laboratory. In fact there is no whisper in any of the show cause reply filed by the respondent- writ petitioner that the laboratory report of the Indian Oil Corporation was faulty or erroneous. As indicated above, the emphasis of the respondent all along on that a fresh simple should be drawn and that should be retested and as such, the judgment of the Apex Court in the case of 56 Harbanslal Sahnia (supra) will also be of little help for the respondent- writ petitioner, who as noted above having not raised this issue of retesting in the first writ application filed by him in C.W.J.C.No. 12866/2003 had made a casual reference to the violation of Clause 2.5D of the Marketing Disciplinary Guidelines and his real challenge to the impugned order cancelling his dealership in fact was based on violation of clause 2.5K of the Guidelines as would be reflected from paragraphs no. 71 to 73 of the writ petition read with his persistent request for drawing fresh sample from the retail outlet for retesting in terms of clause 2.5K of the Guidelines. This Court, however, does not find any infirmity in the order of the appellate authority where this issue was directly addressed to in the impugned order as also in the appellate order affirming the impugned order as discussed in the earlier part of this judgment.
56. This Court, therefore, would also agree with the submissions of Mr. Chatterjee, learned counsel appearing on behalf of the appellants, that in the given context Clause 2.5D of the Marketing Guidelines cannot be held to be mandatory and the reliance placed by him 57 on a judgment of the Apex Court in the case of Dalchand vs. Municipal Corporation, Bhopal & ors., reported in AIR 1983 S.C. 303, lends support to his submissions that the request for retesting of the sample with the dealer is not a mandatory provision of the Guidelines and has to be based on the materials to be adduced by the dealer seeking retesting. In Dalchand‟s case (supra) the Apex Court in fact was considering the provisions of sections 13 and 23 of the Prevention of Food Adulteration Act read with Rule 9 of the Prevention of Food Adulteration Rules which required the Food Inspector to supply a copy of the report of the Public Analyst to the person from whom the sample was taken within a period of ten days of the receipt of the report and it was held that the same was only directory and not mandatory. In the present case not only Clause 2.5D of the Marketing Guidelines has to be read in isolation but also the conduct of the petitioner has to be taken into account who in fact had never seriously questioned the laboratory report of the Indian Oil Corporation so as to warrant a retest.
58
57. Thus, this Court having given serious consideration to the submissions of the parties as also the materials on record would find that the allegation of adulteration in the retail outlet of diesel of the respondent- writ petitioner was clearly proved both from the angles of excess stock as also technical specification of the diesel found in the laboratory report. Thus, the inescapable conclusion was that the respondent- writ petitioner was guilty of the charge of adulteration of diesel and was accordingly liable for termination of his dealership in terms of the dealership agreement.
58. Before parting with this Court must note that there is a rampant mal-practice going on in sale of petroleum products. The people at large are suffering on account of lack of periodical check of standard of petroleum products and lubricants being supplied from the State agencies and therefore, any misplaced sympathy with such dealers on a technical ground would only emboldem them to continue with such repeated acts of mal-practice. The courts of law, therefore, will have to deal firmly with such persons against whom there is a conclusive evidence of adulteration in the public 59 consumables be it food, insecticides or petroleum products.
59. Thus, for the reasons indicated above, this appeal is allowed and the impugned order of the learned Single Judge is set aside. The order dated 30.4.2008 terminating the dealership to the respondent- writ petitioner as affirmed in appeal by an order dated 15.9.2008 is restored and the writ application of the respondent- writ petitioner, accordingly, is dismissed. There would be, however, no order as to costs. I agree.
(Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated the 18th May 2010 NAFR/Surendra