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12. It was next submitted that the petitioner had not received any speaking order as per Clause 8.5.8 after filing reply dated 19.01.2021 in response to the show cause notice and thus, the respondents have exceeded its authority by issuing notices under Clause 8.6 of the MDG and finally passing of the termination order. As per Clause 8.6 of the MDG, in case of critical irregularities leading to termination, the Head of the State Office/Regional Office/Zonal Office of the concerned OMC or their nominee before recommending/approving the termination of dealership will provide a personal hearing to the signatories of the dealership, the entire action was in fragrant violation of the said clause. In support of his submission, he had placed reliance on the judgments of this Court in M/s Chaudhary Filling Point, Kazipur vs. State of UP and ors4 and M/s Kamal Kant Automobiles and another vs. State of UP and ors5.

ARGUMENTS OF THE RESPONDENTS

14. Per contra, Mrs. Archana Singh, learned counsel for the respondent Corporation vehemently argued that the petitioner had not taken any ground in his reply regarding the delay of service of the notice as per Clause 8.5.6 of MDG, which provides that in respect of all cases of irregularities, a show cause notice will be issued to the dealer within 30 days from the date of inspection indicating all the irregularities. Once the petitioner submitted his reply to the show cause notice and also participated in the proceedings of inquiry, then the petitioner has no right to challenge the legality of delay in service of the show cause notice. The statutory provision under Clause 8.9 of MDG is available to the petitioner to file an appeal against the termination order, and instead of filing the appeal, the petitioner has straightway filed the writ petitions, which are not maintainable, in view of the alternative forum. She submitted that on 14.07.2020 a mail on LEAD through Vishleshan for Exception (DU Logs-critical) for the aforesaid retail outlet was generated with analyst remarks as under:-

19. Chapter 5 of the MDG deals with the provisions relating to irregularities at retail outlets/petrol pumps, wherein a detailed procedure is prescribed for checking 'short delivery of products' when the tampering of seals are found by the department of W & M and also when unauthorized fittings in dispensing units are found during inspection. Chapter 8 of the MDG provides the actions, which can be taken by the Oil Marketing Companies under the MDG. In Clause 8.5.2, it has been provided that irregularities provided in the MDG need to be established 'before' any action is taken by the Oil Marketing Companies and similarly, it is provided in Clause 8.6 of the MDG that in case of critical irregularities like tampering in dispensing units etc., the Company may terminate the dealership. However, before recommending termination of dealership, the Company will provide a pre-decisional personal hearing to the retail outlet/petrol pump owner and under Clause 8.5.2, it is provided that unless the critical irregularities are established by the Company after necessarily taking the opinion of the W & M department and the OEM under Clause 5.1.2 (b) and 5.1.4, no action would be taken against the dealer. Clause 8.9 of the MDG contains provision for appeal before the Executive Director (Retail) against the orders passed in cases of critical irregularities as defined in the MDG, which includes cases like tampering with the seals etc. The aforesaid appeal is required to be disposed off by the appellate authority, preferably within a period of 90 days from the date of filing of appeal.

24. Thus, there is clear non-compliance of Clause 8.6 of the MDG by the respondent-authorities. Moreover, the respondents have failed to show any rule or regulation to demonstrate that when the dealership is terminated as per terms and conditions of the agreement, provisions of the MDG would not be applicable. The MDG has been enacted for such dealership agreements as the one involved in the instant case and therefore, we are of the view that these guidelines need to be strictly construed by both the parties. Further, any dealership agreement cancelled by the respondent Corporation cannot be effected on the basis of dealership agreement itself as the MDG have to be followed while taking recourse to such action. The respondent Corporation cannot act arbitrarily at its own sweet will like a private individual and deal with any person it pleases, but rather its action must be in conformity with standards or norms, which are not irrational or irrelevant. Therefore, respondents cannot be exempted from the application of MDG merely by following the dealership agreement.