Rajasthan High Court - Jodhpur
M/S Parihar Filling Station vs Indian Oil Corporation Ltd. & Ors on 13 November, 2017
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7342 / 2017
M/s Parihar Filling Station, Haryali, Tehsil Sanchore, District Jalore,
Through Its Proprietor Shri Mohan Lal S/o Shri Pokar Lal, Aged
About 36 Years, Resident of Subhash Colony, Bhagat Ki Kothi,
Jodhpur (Raj.)
----Petitioner
Versus
1. Indian Oil Corporation Ltd., Through Its Executive Director
(Operation), Rajasthan State Office, Ashok Chowk, Adarsh Nagar,
Jaipur.
2. The General Manager (Operations), Indian Oil Corporation Ltd.,
Ashok Nagar, Adarsh Nagar, Jaipur.
3. The Chief Manager (Operations), Indian Oil Corporation Ltd.,
Rajasthan State Office, Jodhpur Terminal, Salawas, Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr Sanjeet Purohit
For Respondent(s) : Mr Sandeep Shah
_____________________________________________________
HON'BLE MR. JUSTICE VIJAY BISHNOI
Judgment / Order 13/11/2017 This writ petition is preferred by the petitioner being aggrieved with the order dated 13.06.2017 passed by respondent No.3 whereby the entire fleet of the Tank Truck of the petitioner has been blacklisted from Jodhpur Terminal of Indian Oil Corporation Limited (for short the "IOCL" hereinafter) for a period (2 of 16) [CW-7342/2017] of two years on industry basis and the security deposit of the petitioner has also been forfeited.
Brief facts of the case are that the respondent IOCL has invited tender for transportation of MS/HSD and branded fuels from Jodhpur Terminal to various locations of the IOCL, where the retail outlets of it are established. The petitioner, which is a proprietorship firm has applied pursuant to the said tender and its bid was accepted and the respondent authorities issued the work order to the petitioner-firm allowing it to engage 20 tank trucks for transportation of MS/HSD and branded fuels. The said work order was issued on 01.06.2015 for a period of three years and the petitioner-firm is carrying out the said transportation from that date.
On 04.05.2017 when the Tank Truck No.RJ19GB-5148 (hereinafter to be referred as "the T.T. in question") was being loaded, a flash fire took place in compartment No.2, however, the said fire was immediately extinguished. The matter was investigated by a committee and it was found that datum plates of compartment No.2 were freshly tampered. It was further observed that as per the calibration chart, the thickness of datum plates are required to be 10 mm, however, the actual thickness of datum plates in the four compartments i.e. compartment Nos. 1 to 4 of the T.T. in question were 18 mm, 31 mm, 22 mm and 30 mm. It was also observed that 4 nuts are provided between manhole plate and packing in compartment No.2 to defeat the purpose of packing, making transportation unsafe and violating explosive rules.
(3 of 16) [CW-7342/2017] On 08.05.2017, a notice was issued to the petitioner- firm to show cause why action as per the Oil Industry Transport Discipline Guidelines (for short 'the Guidelines' hereinafter) should not be taken against it. The petitioner-firm was asked to file explanation within 7 days and the proprietor of the petitioner-firm submitted his written explanation on 24.05.2017. Dissatisfied with the written explanation submitted by the proprietor of the petitioner-firm, notice was issued to him on 08.06.2017 asking him to appear for personal hearing on 12.06.2017. The proprietor of the petitioner-firm had appeared for personal hearing, however, after hearing him, the respondent No.3 issued the impugned order dated 13.06.2017, whereby the entire fleet of the Tank Trucks of the petitioner-firm running at Jodhpur Terminal has been blacklisted for a period of 2 years on industry basis and the security deposit of the petitioner-firm has also been forfeited apart from T.T. crew of the T.T. in question being banned for two years. Being aggrieved with this, the petitioner has preferred this writ petition.
Learned counsel for the petitioner has submitted that there is no question of any tampering with the datum plates by the petitioner-firm and the respondent IOCL has wrongly held the petitioner-firm liable for the alleged tampering. It is submitted that as per the prevailing practice and system, the petitioner- firm's T.T. was being filled at the respondent - Corporation Depot by the official of the Depot and a locked T.T. is being given to the crew of the T.T. for transporting of the fuel to the desired destination and the dealer of the desired destination i.e. the retail (4 of 16) [CW-7342/2017] outlet was having another key of the said T.T. and on being unlocked by the concerned dealer, the fuel was then unloaded in the storage tank of the retail outlet. It is submitted that the petitioner-firm's representative or the crew member was not having any key to open the T.T. and, therefore, it cannot be presumed that the petitioner-firm or its representative or crew member could tamper with the datum plates of the T.T. It is further submitted by the learned counsel for the petitioner that on 04.05.2017, the fire in the compartment No.2 was erupted not on account of any irregularity or tampering committed by the petitioner-firm and the actual reason for eruption of fire is not known to the petitioner-firm but the respondents with the intention to save the employees of the Corporation have made the petitioner-firm scapegoat because the fire was erupted on account of carelessness of the employees of the Corporation.
Learned counsel for the petitioner has further argued that even if it is presumed that on the day of the incident, the fire was erupted on account of any tampering with the datum plates of the T.T. in question, then also as per the Guidelines the entire fleet cannot be blacklisted. It is submitted that as per the Guidelines, in the first instance, the petroleum company can impose a penalty of Rs.1 lac apart from blacklisting the involved Tank Truck. In the second instance of the blacklisting, the penalty of Rs.2 lac can be imposed and involved T.T. can be blacklisted. In the third instance, a penalty of Rs.5 lac can be imposed and the remaining T.Ts. along with involved T.T. will be blacklisted. In the fourth instance, a (5 of 16) [CW-7342/2017] penalty of Rs.8 lac can be imposed and 50% of the remaining T.Ts. can be blacklisted along with the involved T.T. and after those four instances, in case of any further incident of malpractice takes place, the entire fleet can be blacklisted and the transportation contract can be terminated. It is submitted that in the present case, whatever the malpractice observed by the IOCL, it was the first instance and in that case the respondent - IOCL can impose the penalty of Rs.1 lac apart from blacklisting the T.T. in question but the respondent - Corporation has imposed extreme penalty of blacklisting of the entire fleet of T.Ts. as well as the termination of the contract with forfeiture of security deposit. It is argued that such action of the respondent - authorities is violative of the Guidelines as well as disproportionate in relation to the alleged malpractice and, therefore, the impugned order is liable to be set aside.
Learned counsel for the petitioner has further argued that the allegations of tampering with datum plates of the Tank Trucks were also found proved against some other transporters, however, in those cases, the respondent - IOCL has only imposed a penalty of Rs.1 lac and blacklisting of concerned T.T. only, whereas in the case of the petitioner-firm, the respondent - IOCL has illegally imposed the extreme penalty of blacklisting the entire fleet of T.Ts.
Learned counsel for the petitioner has further submitted that the entire record of the petitioner-firm's functioning remained uncontroverted as no complaint with regard to functioning of the petitioner-firm has ever been reported and (6 of 16) [CW-7342/2017] looking to the past clear record of the petitioner-firm, the action of the respondent - IOCL of blacklisting the entire fleet of T.T. is illegal. Learned counsel for the petitioner has, therefore, prayed that the impugned order be quashed and set aside.
Justifying the action of the respondent - Corporation, learned counsel appearing for the respondent - Corporation has submitted that the action of the respondent - Corporation of blacklisting the entire fleet of the petitioner-firm is perfectly in consonance with the Guidelines as well as the terms of the contract entered between the petitioner-firm and the respondent. Learned counsel for the respondent - Corporation has argued that on 04.05.2017 when the T.T. in question was being loaded, suddenly fire erupted and a huge catastrophic incident could have occurred and the entire Depot could have caught fire. It is submitted that during the course of investigation by the committee, it was revealed that all the four datum plates of the four compartments of the T.T. in question were freshly tampered and the thickness of the datum plates were not as per the calibration chart. It is submitted that as per the calibration chart, the thickness of datum plates is required to be 10 mm, whereas the thickness of the datum plates in the four compartments of the T.T. in question were found 18 mm, 31 mm, 22 mm and 30 mm respectively.
It is contended that it is wrong to say that the said tampering with the fitting, locking system has not been done at the instance of the petitioner because the T.T. in question was under control of the petitioner only. It is also contended that the (7 of 16) [CW-7342/2017] petitioner - firm was provided opportunity to defend itself by giving a show cause notice and thereafter by providing personal hearing, however, when the explanation offered by the petitioner was not found satisfactory, the impugned order has been passed in consonance with the terms and conditions of the Guidelines.
Learned counsel for the petitioner has submitted that from the evidence collected by the committee of the IOCL, it was found that in the compartment No.2 of the T.T. in question the datum plate was freshly tampered as welding bead was found inside the chamber. Due to fresh welding by way of tampering the datum plates, metal was hot and while loading the fuel in Compartment No.2, the fire erupted. It is contended that looking to the said piece of evidence, there is no doubt that the malpractice committed by the petitioner-firm was unpardonable and in such circumstances, it cannot be said that there is any illegality in passing the impugned order.
Learned counsel for the respondent - Corporation has further argued that a perusal of the Guidelines will reveal that there is a deeming clause providing that in case of unauthorized fitting or alternation in the standard fittings, it shall be deemed that complicity of carriers to be in existence and as the petitioner has failed to prove its non-involvement in unauthorized fitting and alternation in the standard fittings, the respondents have rightly imposed the penalty of blacklisting the entire T.Ts. and forfeiture of security deposit.
Learned counsel for the respondent - Corporation has further argued that the allegation of the petitioner - firm to the (8 of 16) [CW-7342/2017] effect that in the cases of identical delinquency, lesser punishment has been imposed is without any merit as in the case of Sainik Service Station, Pachpadra, there was no tampering with datum plate but in that case the malpractice was pertaining to locking rod connected the same dom cover and so far as other case i.e. Sainik Service Station, Barmer is concerned, the same was pertaining to thickness of the datum plate, wherein there were small changes in the thickness of datum plate and nothing else.
It is submitted that the case of the petitioner - firm is quite different from other cases, inasmuch as there was not only vast variations in datum plates but in this case, only four nuts were provided in manhole Compartment No.2 defeating the purpose of packing, making transportation unsafe and violating explosive rules also.
It is contended that in other cases, there was no serious safety issue but in the instant case, weld bead was found inside the chamber including the fresh welding done just before entering of the T.T. for loading . It is submitted that on account of that a flash fire had occurred as soon as petroleum produce was poured in the compartment but luckily the fire was extinguished, otherwise a catastrophic condition could have taken place just like the fire in Jaipur Terminal in the year 2009, which could had destroyed the entire terminal and could take valuable lives apart from loss to public property.
Learned counsel for the respondent - Corporation has, therefore, argued that the punishment imposed vide impugned order cannot be said to be disproportionate in any manner and in (9 of 16) [CW-7342/2017] the facts and circumstances of the case, no interference is called for.
Heard learned counsels for the rival parties. It is not in dispute that on 04.05.2017 when the T.T. in question was being loaded with the petroleum products, fire erupted in the Compartment No.2 and the fire was immediately extinguished and no loss was caused either of lives or property.
During the course of investigation, it was found that the datum plates in each Compartment of the T.T. in question were not of the thickness as prescribed in calibration chart. This fact has also not been disputed by the petitioner-firm in its written reply that there is no difference in the thickness of the datum plates of all the Compartments of the T.T. in question and no such claim was made that the same were having the thickness as per the calibration chart. The defence offered by the petitioner-firm is to the effect that as there was a company's lock on the T.T. in question after calibration, there is no procedure by which the transporter can open the lock. In the said reply, the petitioner-firm has even offered that if the IOCL is not satisfied with the datum plates, then the petitioner-firm is ready to recalibrate the same. Even in the writ petition, the petitioner-firm has not claimed that there was no variation in the thickness of the datum plates and the thickness of the same was as per the calibration chart. The petitioner-firm in its reply has also not denied the fact of eruption of fire on 04.05.2017 when the T.T. in question was being loaded and had simply said that they could not ascertain the cause of fire.
During the process of hearing, learned counsel for the (10 of 16) [CW-7342/2017] Corporation has furnished a copy of the recommendations of committee of IOCL comprising of six Members, who minutely conducted the investigation in respect of the incident of fire on 04.05.2017 at Jodhpur Depot of IOCL while loading the T.T. in question. The said committee has opined that the probable root cause of the accident was changing of datum plate of Compartment No.2 just before entering into Terminal. It is also observed that the time gap between hot work and loading at bay 23 was approximate 70-75 minutes, however, in view of the high ambient temperature, standing of the T.T. in open place and closed chamber, the cooling rate of welded portion of the T.T. was less and as such spontaneous fire took place just after starting of loading of petroleum product in the Chamber No.2.
The committee has also reported that just before the entry in the Terminal, the T.T. was found parked near a place to the Terminal, where large numbers of welding / repairing garages located.
Clause 8.2 provides penalty for malpractices/irregularities, which is reproduced hereunder:
"8.2 Penalties for malpractices/irregularities 8.2.1. Malpractices/irregularities will cover any of the following:
a. Unauthorized deviation from specified route/ unauthorized delay/ unauthorized en-route stoppage/ not reaching destination/ over speeding/ en-route switching off VMU/ unauthorized removal of VMU/ use of VMU on other vehicles b. TT crew found in intoxicated state while on duty.
(11 of 16) [CW-7342/2017] c. Irregular reporting of TT at loading location without permission of the location d. Refusal to carry loads allocated by the location.
e. Reported case of non-wearing of retractable seat belt while driving.
f. Driving vehicle without cleaner/helper.
g. Non-functioning of Fire Extinguisher carried by TT.
h. Polluting environment due to product spillage from tilting or leaky vehicles on road, in case of accident/ unsafe driving i. Accident involving injury or damages to the facilities at the work place j. Fatal accident at the work place k. Tampering with standard fittings of TT including the sealing, security locks, security locking system, calibration, Vehicle Mounted Unit or its fittings/ fixtures l. Unauthorized use of TT for products other than the petroleum products for which it has been engaged m. Entering into contract based on forged documents/ false information n. Entering into an agreement for the same TT with other oil companies o. Irregularities under W&M Act p. Not lodging FIR with the Police in case of accident, not informing/ submitting accident report to the Oil Company about the accident q. Pilferage/ short delivery of product r. Any act of the carrier/ carrier's representative that may be harmful to the good name/ image of the Oil Company, its' products or its services.
8.2.2 Penalties upon detection of malpractice/ irregularities The carrier shall attract penalties for the (12 of 16) [CW-7342/2017] malpractice/irregularities as given below and the TT mentioned in the following instances shall be suspended/blacklisted along with TT crew. However, an investigation, wherever required, shall be conducted and if the malpractice/ irregularity is established then penal actions stipulated as under shall be taken, including blacklisting :
Clause Type of malpractice/ irregularity Penalty against number of instance No. First Second Third 8.2.2.1 (a) Reported non-wearing of TT shall be TT shall be TT shall be retractable seat belt while driving. suspended for suspended blacklisted one week. for 3
(b) Repetitive / Habitual Over months.
speeding.
(c) Driving vehicle without cleaner / helper 8.2.2.2 (a) Established repetitive un- TT shall be TT shall be authorized stoppage enroute suspended for 3 blacklisted.
months.
(b) Established repetitive un- authorized diversion from specified route.
(c) Refusal to carry loads allocated by the location.
(d) Irregular reporting of TT at loading location without permission of the location.
8.2.2.3 Short delivery of product for TT shall be
established malpractice blacklisted
8.2.2.4 (a) Non-availability/ non-functioning TT shall be TT shall be TT shall be of TT fire extinguisher. suspended for suspended blacklisted one week for 3
(b) TT crew found in intoxicated state months while on duty.
(c) Not wearing uniform.
(d) Not wearing PPEs at loading/un- loading locations.
8.2.2.5 (a) Established tampering/ damaging TT shall be
of VMU blacklisted
(b) Established disconnection of
power/cable of VMU enroute.
(13 of 16)
[CW-7342/2017]
(c) Removal of VMU from original
mounting
8.2.2.6 Accident at the location leading to TT shall be TT shall be
injury of persons or damages to the suspended for 3 blacklisted facilities. months.
8.2.2.7 Polluting environment due to TT shall be TT shall be product spillage from TT suspended for 3 blacklisted.
months.
8.2.2.8 Established case of pilferage/non- TT shall be
delivery of product. blacklisted
8.2.2.9 Fatal accident at the work place TT shall be
blacklisted
8.2.2.10 Irregularities under W&M Act. TT shall be
blacklisted
8.2.2.11 Tampering with standard fittings of TT shall be TT including the sealing, security blacklisted. locks, security locking system, Calibration.
8.2.2.12 Unauthorized use of TT outside the TT shall be
contract blacklisted
8.2.2.13 Entering into contract based on TT shall be
forged documents/ false information blacklisted 8.2.2.14 Entering into an agreement for the TT shall be same TT with other oil companies blacklisted 8.2.2.15 Non lodging FIR with the Police in TT shall be case of accident, not informing/ blacklisted submitting accident report to the Oil Company about the accident 8.2.2.16 Any act of the carrier/carrier's As decided by representative that may be harmful the company to the good name/ image of the Oil Company, its' products or its services During the validity of transportation contract, in the first instance of blacklisting for a transporter, as per the above provisions, damage of Rs.1Lakh will be imposed on the Transporter apart from blacklisting of the involved TT. In second instance of blacklisting , a damage of Rs. 3 Lakhs will be imposed and the involved TT will be blacklisted . In third instance of blacklisting, a damage of Rs.5 Lakhs will (14 of 16) [CW-7342/2017] be imposed and 25% of the remaining TTs will be blacklisted along with the involved TT. In fourth instance, a penalty of Rs.8 Lakhs will be imposed and 50% of remaining TTs will be blacklisted along with involved TT. In case of any further incident of malpractice, the entire fleet will be blacklisted and the SD will be forfeited and the transportation contract will be terminated. The percentage of TT blacklisted will be in proportion of own & attached offered and will be rounded off to the higher numerical. Above damages imposed are in addition to the recovery of the product quantity found short or recovery due to contaminated product involving the cost of product, expenses and losses incurred as determined by the company.
However, in case, complicity of the transporter is established even in first instance of malpractice, the entire fleet will be blacklisted, contract terminated & carrier blacklisted along with forfeiture of SC.
The blacklisting of TTs shall be on Industry basis. In the following irregularities, the complicity of the carrier shall be deemed to be existent and the whole contract comprising of all the TTs belonging to the concerned carrier shall be terminated, security deposit forfeited and the concerned carrier & their all TTs shall be blacklisted on Industry basis.
1. False/hidden compartment, unauthorized fittings or alteration in standard fittings affecting Quality and Quantity.
2. Illegal/un-authorized duplicate keys of security locks.
3. Duplicate dip rod/calibration chart."
[Emphasis supplied] It is true that in clause 8.2.2.11, it is provided that in case of tampering with the standard fittings of TT including the sealing, security locks, security locking system, calibration, only (15 of 16) [CW-7342/2017] TT shall be blacklisted but in the Guidelines, there is deeming clause, which provides that in case of false/hidden compartment, unauthorized fittings or alteration in standard fittings affecting quality and quantity, complicity of the carrier shall be deemed to be existent. (Reference is highlighted) Though opportunity was provided to the petitioner by the IOCL to put its defence by issuing show cause notice and by giving opportunity of personal hearing but the proprietor of the petitioner-firm has failed to prove his non-complicity in the admitted malpractice/irregularity.
Taking into consideration the fact that the fire, erupted on the day of the incident, if could not have extinguished immediately, it might cause huge loss of lives and property, no lenient view can be taken in the facts and circumstances of the case and, therefore, the respondent - IOCL has rightly imposed the extreme penalty of blacklisting the entire fleet as well as the forfeiture of security deposit of the petitioner-firm.
Otherwise also, this Court cannot act as an appellate authority while making a judicial review of any order passed by the IOCL. The decision taken by the IOCL of blacklisting the entire fleet of the petitioner-firm and forfeiture of the security deposit can only be interfered with if while imposing the said penalty, the procedure as provided under the law has not been followed or the said decision suffers from any malafide. However, in the present case, the petitioner-firm has failed to satisfy that while imposing the penalty vide impugned order, the respondent - IOCL did not follow the procedure provided under the law and has also not (16 of 16) [CW-7342/2017] alleged malafide against any official of the IOCL.
In view of the above discussions, I do not find any merit in this case. Hence, the writ petition fails and is hereby dismissed. There shall be no order as to costs.
Stay petition also stands dismissed.
(VIJAY BISHNOI)J. m.asif/PS