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(f) On 23.05.2017, the Senior Divisional Retail Sales Manager of the IOC issued a fact finding letter to the petitioner and by referring to the inspection made on 04.05.2017, it was stated that certain additional fittings have been found which led to the sealing and handing over of the said pulsar units to the OEM for further testing and even though the result of the further testing was awaited yet the petitioner was called upon to furnish its reply relating to the discovery of additional/unauthorized fittings as well as the short delivery as the aforesaid two discrepancies were in violation of Clause 5.1.4 of Marketing Discipline Guidelines (in short 'MDG') and 5.1.2 (a) of MDG.
(g) The petitioner sent its reply on 12.06.2017 indicating that as per a routine mandatory practice in accordance with Clause 1.4.2 (d) of MDG, the DU were checked for delivery and even on 04.05.2017, it was found to be functioning appropriately. The same was also recorded in the daily sales register. The seals affixed by the Department of Weights and Measures was intact, however, as far as the short delivery is concerned that could be due to several reasons and it was pointed out by referring to the requests made by the petitioner for re-callibration and re-stamping as per Clause 5.1.2(a) of MDG.

28. It will be worthwhile to mention that in a similar matter, a coordinate Bench of this Court in M/s Mishra Automobiles Vs. Union of India and others;2024:AHC-LKO:53503 and dealing with similar issue and relying upon Clause 5.1.4 of the MDG, in paragraphs 14 to 18 has held as under:-

"14. From the aforesaid provision, it is clear that when any mechanisms, fitting, gear found fitted in dispensing unit with the intention of manipulation of delivery would amount to invite proceedings under the said sections and lead to cancellation of the license. Therefore, from a bare reading of Clause 5.1.4 of the MDG Guidelines, it is clear that any mechanism or fitting in the dispensing unit should result in manipulation of delivery or such additional fitting should at least the capable of manipulating the delivery. There is no dispute with regard to the fact that the foreign component was in fact found on the pulsar cards but the dispute in the present case is only with regard to the fact that as to whether discovery of a foreign component on the pulsar card would automatically lead to the conclusion that same has been installed with an intention of manipulation of delivery. In the present case, the peculiar facts are that seals of the dispensing units were intact at the time inspection. The foreign component found in the pulsar card has been reported by the OEM. Thee is no clear finding that such foreign component would led to the short supply of diesel in its original report dated 11.05.2017 or in subsequent clarification issued on 17.05.2017.

In the present case, there is no evidence with regard to the second necessary ingredient, which is 'intention of manipulating the delivery' and also the inquiry fell short of returning any finding as to show any such manipulation. Therefore, the petitioner cannot be said to have violated 5.1.4 of the MDG Guidelines.

18. In the aforesaid circumstances, firstly, it is not the case of the respondent Oil Company that there was any shortfall of the delivery, coupled with the fact that even the OEM has never reported, the result of the foreign body attached to the pulsar card and secondly, the benefit of doubt of the seal being intact during the time of inspection has to be given to the petitioner as the foreign component cannot be inserted without breaking the seal of the dispensing unit. Counsel for the respondent also could not confirm as to whether the foreign component can be inserted on pulsar card without breaking the seals. Therefore, reading the inspection report dated 05.05.2017 wherein in paragraph 2, it has clearly been found that the delivery was found to be correct, coupled with the fact that in paragraph-5, it has been stated that seals were broken in presence of the inspecting team leads to have irrebuttable conclusion that the seals were intact and there was no short supply of the fuel and consequently, in the aforesaid circumstances, it cannot be concluded that there was intention to manipulate the delivery, and hence any violation of Clause 5.4.1. of the MDG Guidelines."