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Distribution Tank Product Test Analytical Contact Nozzle No. Type Column Result Sign Number (P/N) 04111273 9D289 1 Diesel 04111270 P 7A2094 2 Petrol 04111270 N (12) The team then recorded "HSD sample found 'positive' in Marker Test."
(13) At this stage, the submissions made on behalf of respondent No. 1 that there is interpolation in the Standard Operational Form: Site Report, wherein in respect of distribution nozzle 9D289 two test column numbers are noted i.e.: 04111273 and 04111270 against product diesel and under the head "Analytical Result (P/N) 'P' is interpolated. On these submissions, it is contended that there is interpolation as to test report of diesel product. The appellant, to rule out the doubt, has placed before us the original site report wherein we do not find any interpolation, as alleged. It is noted down in clear terms the positive analytical result, meaning thereby that with the Marker Test being applied the HSD was found adulterated.
"The Detailed Procedure for Marker Tests at Retail Outlets dtd.09.02.2007 as well as the Revised Marker Testing Procedure dtd 29.03.2007 gives a provision for testing of samples in the laboratory in the presence of dealer. The Marker legislation of MDG was implemented w.e.f.15.02.2007 but SGS had some reservations on the procedure note hence it was kept in abeyance. This particular incident of Marker Failure at Kisan Diesel Kendra, Baroda on 25.02.2007 pertains to the interim period. As per the procedure, we should have only conducted Marker Test on the RO, TL and SL sample at the Laboratory in the presence of the Dealer. However we have provided a full specification test report along with the SCN which clearly mentions that the RO sample meets the requirement of HSD (BSII) but fails in Marker Test.
As a result, this Court concludes as under:-
i- Since Marker test carried out at Mathura laboratory on 27/2/2007 was without notice to the petitioner and behind his back, the same is contrary to the procedure prescribed under the Industry Transport Discipline Guidelines and in violation of principles of natural justice.
Likewise, the Marker test conducted on 7/1/2008 at Indore laboratory since was not carried out on the retail outlet retention sample, as directed by the Executive Director (Retail) West, therefore, its report is held to be arbitrary, illegal and contrary to the directions of the competent authority and inconsequential, as once the Executive Director (Retail) West had directed to carry out Marker test on retail outlet sample, the concerned Area Manager had no authority to deviate therefrom and resort to Marker test on company retention sample. This act of the Area Manager has caused serious prejudice and detrimental to the rights and interests of the petitioner, which led to termination of dealership.

(27) In the case at hand, evidently, the report dated 03/03/2007 reveals that the sample meets the requirement of HSD (BS II) and found P (Pink Marker Test). This report led to initiation of proceedings against the respondent. However, the proceedings initiated during subsistence of Marker Test System lapsed with the withdrawal of said Marker Test System w.e.f. 01.01.2009 as there was no stipulation that, the proceedings initiated during subsistence of Marker Test System were saved. For these reasons also, in our considered opinion, the rejection order dated 12/02/2009 cannot be upheld.