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2007 DIGILAW 1151 (PAT)

Janak Ram v. Union Of India

2007-07-16

MRIDULA MISHRA

body2007
Judgment 1. Heard counsel for the petitioner and the counsel appearing for the Indian Oil Corporation. 2. Petitioner was running a retail outlet for selling petrol and diesel in the name and style of M/s Chanda Automobile, Narayanpur Anant, Muzaffarpur. 3. Initially this application was filed for a direction to the respondents authorities of Indian Oil Corporation to remove the seal of Dv Tank and metre reading of the petrol pump of the petitioner, which was sealed on 11.3.2006 after holding some enquiry. In the enquiry it was found that the petroleum product failed to meet the specifications as per the Marketing Guidelines as well as the guidelines of the Corporation. 4. During the pendency of this application I.A. No. 1869 of 2007 was filed by the petitioner stating that the dealership license of the petitioner has been terminated. The petitioner has challenged the termination order mainly on the ground that the provisions under the Marketing Guidelines have not been duly observed by the respondents while terminating the dealership license of the petitioner. One of the ground for challenging termination order is non-observance of Clause 2.4.4 of the Guidelines which relates to the drawal of samples by mobile laboratories. It has also been stated that as per the Guidelines the samples which are taken for test should reach to the respective test laboratory within ten days of the collection of the samples. The test lab report has been annexed as Annexure-1 to the supplementary affidavit in order to show that the samples was drawn on 20.1.2006 it reached test lab on 9.3.2006 and the report was submitted on 11.3.2006. It has been submitted by the petitioners counsel that there is clear violation of the Marketing Guidelines as such the order cancelling license for running retail outlet need to be quashed. 5. Counsel appearing for the Indian Oil Corporation has submitted that ten days time which has been provided under Clause 2.4.4. is not mandatory and its purpose is only to streamline the production of samples for lab test. It has no impact on the result of the test lab report even if the samples drawn reaches to the test lab after ten days. It has no effect on the merit of the test report. In order to substantiate his submission he has referred item no. 1 of the Genera! It has no impact on the result of the test lab report even if the samples drawn reaches to the test lab after ten days. It has no effect on the merit of the test report. In order to substantiate his submission he has referred item no. 1 of the Genera! Points to be observed in all cases when it has been specified that time frame for various activities including sending samples within ten days is to streamline the system and no way connected to quality result of the product. The counsel appearing for the respondent-Corporation has submitted that the impugned order passed against the petitioner has to be tested at the touchstone of Article 14 of the Constitution i.e. whether it is discriminatory or violative of rules of natural justice. Here in the case, the petitioner was given all opportunity whatever provided under the Marketing Guidelines, observing all provisions only impugned order has been passed. Notice was issued to the petitioner for showing cause and in the show cause there is no denial so far adulteration is concerned. Only reason for such adulteration has been assigned by fixing responsibility on the staffs working at retail outlet. It has been stated that on account of absence of petitioner, his employees who are untrained and ignorant have committed some mistake. In this circumstances there is no reason for interfering with the impugned order. 6. Considering everything, what I find that penalty provided under the Marketing Guidelines, 2005 in case of adulteration, even it is committed for the first time is very severe. Only punishment is termination. If penalty provided under the M.G.D. is so severe in that case only after exhausting all provisions penalty of termination of dealership license should be imposed. All provisions should be observed in true spirit, before imposing penalty of termination. M.G.D., 2005 provide general points to be observed in all cases, there is one provision item no. K under which in all cases where the samples are found to be off specification a subsequent sample should be drawn from some R.O. within three months from the test report of earlier sample. When the counsel appearing for the respondent-Corporation was asked about observance of this provision before passing termination order he said that for this there must be a request from the dealer. When the counsel appearing for the respondent-Corporation was asked about observance of this provision before passing termination order he said that for this there must be a request from the dealer. From the show cause filed by the petitioner I find that there was such request but it has not been done. The provision has not been observed before imposing penalty of termination. 7. Accordingly I find that the provision under the Marketing Guidelines has not been observed in true spirit. The second opportunity should have been given to the petitioner within three months from the date on which samples were drawn for the first time. This provision is there in the M.G.D., 2005. Since it was not done, the termination order passed by the respondents cannot be held to be in consonance with the Marketing Guidelines. Accordingly the order terminating the dealership lincense of the petitioner dated 17.1.2007 issued by the Executive Director, Indian Oil Corporation is quashed. This application is allowed. The respondents are directed to remove the seal from the retail outlet and start supplying the petroleum products to the petitioner.