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3. On 26th May, 2008, a check was conducted at the outlet of the Respondent No.1 Company, where a sample of High Speed Diesel (HSD) failed the Marker Test, which indicated that the same had been contaminated. On the same day, the petitioner Corporation's authorized representative, SGS India Pvt. Ltd. submitted its report on the Marker Test indicating such contamination. Accordingly, in terms of the Marketing Disciplinary Guidelines, referred to hereinabove, on 27th May, 2008, sales and supplies of all the products from its outlet were suspended by the petitioner Corporation to the Respondent No.1 because of the sample failure. According to the petitioner Corporation, on the very next day on 28th May, 2008, the Respondent No.1 was given notice that a Nozzle Test of HSD was to be conducted at the Barauni Terminal on 29th May, 2008. According to the petitioner Corporation, the Respondent No.1's representative refused to acknowledge the notice. However, the Area Sales Manager of the petitioner Corporation is alleged to have informed the Respondent No.1 telephonically of the Nozzle Test to be conducted on 29th May, 2008, at its Barauni Terminal. Despite having been given notice, no one appeared on behalf of the said respondent when the comparison test was conducted in Barauni and the same was held at the Barauni Terminal on 29th May, 2008, in the presence of the representative of SGS India Pvt. Ltd. (the agent of the petitioner), the Manager, Barauni Terminal, Transporter's representative and the petitioner's Area Sales Manager. Further to the result of the test, the Respondent No.1 was served with a notice dated 14th July, 2008, asking it to show cause as to why its dealership should not be cancelled on account of the failed Marker Test. According to the petitioner Corporation, the reply sent by the Respondent No.1 on 21st July, 2008, was entirely vague. Immediately thereafter, the respondent No.1 filed a Writ Petition, being CWJC No.11172 of 2008, in the Patna High Court praying for issuance of appropriate writs to quash the entire proceedings arising out of the Marker Test. On 9th September, 2008, the petitioner Corporation, upon consideration of the reply sent by the Respondent No.1 to the Show Cause Notice, terminated the Dealership Agreement of the Respondent No.1 under Clause 58(1) thereof.

6. Appearing for the petitioner Corporation, Mr. U.U. Lalit, learned Senior Advocate, submitted that the Nozzle Test had been conducted at site in the presence of the representative of the Respondent No.1 and also the transporter and samples had been drawn for testing at site and also for future testing, in the presence of the parties. Since the Respondent No.1 failed the Marker Test during the Nozzle Test, the samples taken earlier were sent to the Forensic Laboratory at Barauni for cross- checking. Mr. Lalit submitted that notice had been duly given to both the Respondent No.1 and the transporter, but that while the representative of the transporter was present, the Respondent No.1 chose to be absent during the Marker Test in the laboratory. Mr. Lalit submitted that the Show Cause Notice issued to the Respondent No.1 on 14th July, 2008, categorically indicated that the representative of the Respondent No.1 had refused to acknowledge the receipt of the notice dated 28th May, 2008, and that the petitioner Corporation had no alternative but to proceed with the Marker Test at Barauni in the presence of the representative of the transporter. Mr. Lalit submitted that when the Respondent No.1 failed the Marker Test even in the laboratory, the petitioner Corporation had no option but to terminate the agreement with the Respondent No.1. Mr. Lalit also emphasized the fact that all the samples had been drawn/collected not by the employees of the petitioner Corporation themselves, but by its authorized agent, M/s SGS India Pvt. Ltd.

11. Mr. Lalit submitted that in view of the failure of the Respondent No.1 to avail of the alternative remedy available to it, the writ petition should have been dismissed at the initial stage.

12. Mr. Lalit's submissions were vehemently opposed by Mr. Ramesh P. Bhatt, learned Senior counsel, who pointed out that the entire procedure adopted by the petitioner had been vitiated on account of the fact that the notice dated 25th December, 2008, which was alleged to have been sent by the petitioner to the Respondent No.1 regarding the test conducted at the Barauni Terminal had not been served on the Respondent No.1 and it was, therefore, completely unaware of the fact that such a test was to be conducted. Mr. Bhatt also submitted that it was the stand of the Respondent No.1 that no Marker Test had, in fact, been held on 26th May, 2008, at the retail outlet itself. The learned counsel pointed out that by letter dated 30th May, 2008, the Respondent No.1 informed the Senior Regional Manager of the petitioner that although the representative of S.G.S. India Pvt. Ltd. had come to the retail outlet on 26th May, 2008 in order to conduct a marker test of the nozzle sample of MS and HSD from the dispensing unit, such a test could not be conducted since the retail outlet was dry in respect of both MS and HSD, which made it impossible for samples to be drawn from the nozzles of the dispensing units of the said products. Similarly, the underground tanks were also dry and there was hardly any MS or HSD available in tank Nos.1 and 2 from which samples could be extracted through the nozzle. Mr. Bhatt also pointed out several other letters of protest written on behalf of the Respondent No.1 against the termination of supply of petroleum products to the said Respondent and requesting that the same may be restored immediately.

13. Mr. Bhatt then referred to the reply given on behalf of the Respondent No.1 on 25th June, 2008, to the show cause notice wherein again the above facts were reiterated and it was also asserted in no uncertain terms that the notice regarding the conducting of laboratory test at the Barauni Refinery of the petitioner had not been served upon the respondent. Referring in particular to the alleged notice dated 28th May, 2008, informing the Respondent No.1 that the Marker Test was to be held at the Barauni Terminal on 29th May, 2008, Mr. Bhatt pointed out that the alleged refusal to acknowledge receipt by an employee of the Respondent No.1 was dated 29th May, 2008 itself and it was highly doubtful as to whether such notice was at all meant to be served on the Respondent No.1 to enable its representative to be present at the Marker Test at Barauni on the same day. It was also pointed out that upon information which had been taken by the Respondent No.1, Mr. Dilip Kumar Dash, the Area Sales Manager of the petitioner Corporation, who was said to have tendered notice to the representative of the Respondent No.1, was not even present in Barauni on 29th May, 2008.