Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 750 (KER)

Pratheesh Fuels v. Indian Oil Corporation Ltd.

2001-12-19

M.RAMACHANDRAN

body2001
Judgment :- M. Ramachandran, J. The petitioner is a dealer in petroleum products, marketed by the Indian Oil Corporation and claims to posses a spotless career. But test of a sample of motor spirit drawn from the outlet nozzle on 12-7-2001 from the pump, failed to meet the specification, in so far as prescription of Final Boiling Point (FBP). The presumption was that the commodity was not marketable and the sale was promptly directed to be stopped. 2. Though the proceedings were challenged by a writ petition, this Court had refused to interfere in the matter. The petitioner thereupon had made a representation to the respondent highlighting certain factors, which according to him were sufficient to show that the coercive steps were finalized ignoring principles of justice. And hence arbitrary. 3. It had been urged that the dealers are constrained to hold the stock on delivery and only had opportunity to satisfy about the density of the commodity. The petitioner avers that the report suggested that it had been maintained. Dealers were not taken into confidence about the FBP. A fresh test also had been suggested, as the petitioner bona fide believed that errors in the testing of sample might be there. However, the request was rejected. By Ext.P4 dated 1.8.2001, the petitioner was directed to pay a fine of Rs. 20,000/- for the discrepancy. The business of the outlet was ordered to be suspended for thirty days. 4. Before taking the stock back, a senior officer had on 10-8-2001 again drawn samples from the existing stock for finding the blending ratio. It is seen that the tank held 7335 litres of motor spirit as balance. Thereafter, in due course, the petitioner had been permitted to carry on the business. 5. The submission made by the counsel for the petitioner is that though he had been visited with the penalty, nevertheless to re-establish his fair name, both the samples collected are to be subjected to fresh laboratory test, and he be intimated about the results. The petitioner also refers to the modalities of sample collection and inspection as laid down by the Marketing Disciples Guidelines dated 3.5.2001, marked as Ext.P6, and contends that they are not fool proof. 6. Mr. Antony Dominic, counsel appearing for the respondent, submitted that after a period of five months, the test results may not be as reliable as the petitioner submits. 6. Mr. Antony Dominic, counsel appearing for the respondent, submitted that after a period of five months, the test results may not be as reliable as the petitioner submits. But the quality of sample is not likely to vary so as to interfere with a scientific inference. Clause (h) of the note to Ext. P6 Circular states as following: "(h) The purpose of mentioning time frame for various activities eg. sending samples to lab within 10 days etc. is to streamline the system and is in no way related to quality/result of the product. But nevertheless Clause (i) discourages a second investigation and sampling is also not envisaged. It is to the following terms: "(i) Whenever any one agency has detected an irregularity on account of quality and initiated investigation, parallel investigation by way of drawl of samples will not be carried out during pendency of the proceedings." For want of clarity, it is not possible to comprehend as to what had been attempted to be conveyed by clause (j) in the Circular. 7. Principles of natural justice are for ensuring a fairness in approach. They have to be applied depending on the particular facts. 'Justicia naturalis' is justice as defined in a moral as opposed to legal sense. The cardinal issue appears to be public interest. It may be necessary for the petitioner to prove his sincerity, but the sampling procedure and inspection is envisaged to see that spurious products are not permitted to be sold by a dealer to gullible general public. A substandard product will cause enormous loss to multitudes of consumers. It may be, in most cases, even undetectable. The court has to view the matters realistically and to permit spurious items to be, distributed uninterruptedly, for the failure to comply with procedural formalities would be suicidal. It will only lead to individual gain forgetting interests of common man. It is not only the contractual rights between two parties, that is involved, but the transactions directly affect the rights of third persons. His presence cannot be ignored. I am of opinion that even principles of natural justice have to be subservient to public interest, as the well being of citizens are the ultimate aim of regulations. The procedure for sampling is in vogue for years , and the inherent risk voiced by the petitioner are per se flimsy. 8. His presence cannot be ignored. I am of opinion that even principles of natural justice have to be subservient to public interest, as the well being of citizens are the ultimate aim of regulations. The procedure for sampling is in vogue for years , and the inherent risk voiced by the petitioner are per se flimsy. 8. Moreover, I do not see that any of the rights of the petitioner stands violated. There is no suggestion that there was any change in the methods adopted for sampling or for testing the product. Viewed from this point, the petitioner cannot as of right insist for a second laboratory test of samples. One cannot also be sure of the authenticity of the second sample drawn after a month's time, unless the full intricacies of the business practices are thoroughly examined. One has to rule out all possibilities about the possibility of changing of the product which was remaining in the tank after the initial inspection. It is not shown how far this is workable. Coupled with the above, it is essential that a deterrent approach alone will yield desired results. 9. In the circumstances, if the samples drawn on 12-7-2001 are available with them, the respondent is directed to subject it to the Final Boiling Point test. The petitioner should shoulder the expenses for the test. As seen from the correspondence, the petitioner had a fairly clean record of functioning, and the above privilege is allowed to be made available, so as to dispel any misunderstanding that possibly might have been there. This exercise has to be carried out within two months from today. 10. If the samples are not available as on today, the test need not be carried out. The petitioner is to be communicated of the further steps that are contemplated. The Original Petition is disposed of with the above directions.