JUDGMENT : D.G.R. Patnaik, J. Heard counsel for the parties. 2. The petitioner in this writ application, has prayed for an appropriate writ for quashing the order dated 22.09.2007 (Annexure-18) passed by the Regional Manager (Retail), Hindustan Petroleum Corporation Limited, Tatanagar, whereby the order dated 1.11.2006 terminating the retail dealership agreement dated 30.7.2004 entered into by and between the petitioner and the respondent Corporation, was confirmed and the petitioner's prayer for restoration of dealership, was rejected along with a direction to the petitioner to hand over the dealership to the HPCL including the retail outlet premises to the concerned Sales Officer of the HPCL. 3. Facts of the petitioner's case in brief is as follows: The petitioner was offered retail outlet dealership of Hindustan Petroleum Corporation Limited and a dealership agreement was entered into with the petitioner on 30.07.2004 (Annexure-3) on the terms and conditions mentioned in the agreement. The petitioner was appointed as dealer in High Speed Diesel Oil/Petrol and Lubricants at the retail outlet. 4. A random inspection was made at the petitioner's retail outlet (petrol pump) by the Manager (Quality Control), Eastern Zone, HPCL on 20.6.2006. The inspection was carried out in presence of the petitioner's representative and a report of inspection was prepared. Signature of the petitioner's representative was obtained on the report and a copy of the report was given to him by the inspecting team, it is stated that in course of inspection, following irregularities were detected. a. The ULP dispensing Unit was found delivering short by 80 ml. in 5 litres measure and the Weights and Measures seal on the totaliser of the same unit was found tampered. b. The tank lorry retention sample (for last 2 receipts of all products) was not made available to the Inspecting Officer at the time of inspection. 5. As it appears from the pleadings, the representative, in whose presence inspection was carried out and to whom a copy of the inspection report was handed over, did not raise any objection whatsoever either in respect of the manner in which the inspection was carried out or in respect of the findings mentioned in the inspection report, nor made any endorsement on the report raising any objection against the correctness of the findings. On the basis of the inspection report, the respondent Corporation served a show-cause notice on 26.6.2006 on the petitioner calling upon him to explain the irregularities which were found in course of inspection. 6. The petitioner responded by submitting his show-cause replies on 12.7.2006 admitting therein that there was short delivery of about 80 ml in 5 litres in the dispensing unit, but explained that the short delivery may be on account of the presence of air in the pipe. The petitioner disputed the correctness of the inspection report stating therein that there could be no tampering of the dispensing unit in view of the fact that in course of inspection carried out by the Inspector, Weights and Measure Department, Deoghar on 11.07.2006, the original seal and the cross seal on the dispensing/totaliser unit, was found intact and not tampered. 7. The respondent Corporation did not feel satisfied with the explanation offered by the petitioner and issued a second show-cause notice calling upon the petitioner to explain as to why penal action, as stipulated in the dealership agreement for terminating the dealership agreement, should not be taken. In response, the petitioner submitted his show-cause replies raising a fresh ground that the inspection was carried out after closure of the petrol pump at 6.00 PM and in absence of electricity, but the respondent corporation declared the same as unsatisfactory and cancelled the dealership agreement of the petitioner. 8. Being aggrieved, the petitioner filed a writ petition before this Court vide WP(C) No. 6583 of 2006. A Single Judge of this Court dismissed the writ petition vide order dated 06.12.2006. Against the order of the Single Judge, the petitioner preferred an appeal before the Division Bench of this Court vide LPA No. 621 of 2006. The LPA was disposed of on 16.1.2007 by setting aside the impugned order of termination of dealership and the order of the Single Judge, remanding the matter to the respondent to conduct a fresh inquiry by giving adequate opportunity to the appellant/petitioner and pass appropriate order assigning reasons in accordance with law, within three months from the date of receipt of the order. Upon receipt of the copy of the order passed in the LPA, the concerned authorities of the respondent Corporation conducted a fresh inquiry by calling upon the petitioner to submit his statements/explanations and all relevant documents. Upon receipt of the copy of the order passed in the LPA, the concerned authorities of the respondent Corporation conducted a fresh inquiry by calling upon the petitioner to submit his statements/explanations and all relevant documents. After conducting the inquiry, the concerned officer of the respondent Corporation passed his order dated 26.3.2007 confirming the earlier order of termination dated 1.11.2006 and rejecting the petitioner's prayer for restoration of dealership. 9. The petitioner refused to relent and filed a fresh writ application before this Court vide W.P.(C) No. 1996 of 2007. The writ application was disposed of vide order dated 16.8.2007 by the Single Judge, remanding the matter back to the respondent Corporation to pass an appropriate order afresh in accordance with law complying the observations and directions of this Court in LPA No. 621 of 2006, within a period of four weeks from the date of receipt/production of a copy of the order. However, the suspension of the retail outlet of the petitioner was allowed to continue. While disposing of the writ application, the learned Single had observed that though in the impugned order, the report of the inspection carried out by the Inspector, Weights and Measure Department on 11.7.2006 was mentioned, but no finding has been given with regard to the said document which had declared that the seals were not tampered. Single Judge had observed that the Regional Manager of the respondent Corporation had not applied his mind fully to the facts of the case and had not passed the impugned order in consonance with the directions of the Division Bench of this Court passed in LPA No. 621 of 2006. 10. Upon the matter being remanded, the Regional Manager undertook once again to conduct a fresh inquiry. The petitioner's husband Manoj Kumar Bhagat represented the petitioner at the inquiry. At the conclusion of the inquiry, the Inquiry Officer had recorded the impugned order confirming the termination of the dealership agreement and rejecting the petitioner's prayer for restoration of dealership. 11. Shri Indrajit Sinha, learned Counsel for the petitioner, has challenged the impugned order on the ground that action on the part of the concerned authority of the respondent is arbitrary, malafide and without jurisdiction. 11. Shri Indrajit Sinha, learned Counsel for the petitioner, has challenged the impugned order on the ground that action on the part of the concerned authority of the respondent is arbitrary, malafide and without jurisdiction. Learned Counsel argues that in the light of the report issued by the officer of the Weights and Measure Department after inspecting the dispensing Unit on 11.7.2006 and confirming therein that there was no tampering of the seals of the dispensing unit, the respondent authorities ought to have considered that the seals on the totalizer/dispensing Unit being intact, there could be no possibility of manipulation of the totalizer/dispensing reading and therefore, no fault could be attributed to the petitioner. Learned Counsel submits that the shortage of delivery could be on account of various factors and reasons other than manipulation, for which the petitioner cannot be held liable or responsible. Learned Counsel argues further that despite the clear observation and direction contained in the direction passed by the Division Bench in the LPA and the order of the Single Judge in the subsequent writ application, the concerned authorities of the respondents had not recorded any findings in respect of the report of the Weights and Measure Authorities. Learned Counsel adds further that even otherwise, as per Clause 6.1.3 of the Marketing Discipline Guidelines, 2005 which governs the terms of the dealership agreement, in case of short delivery of products if the weights and measure seals are intact, then the only prescribed penal action is immediate suspension of sales and supplies from the dispensing unit till re-calibration is carried out by weights and measure department in the presence of an office of the oil company. Learned Counsel explains further that as per Clause 6.1.4 of the Marketing Discipline Guidelines, 2005, it is only in case of tampering of the totaliser seals with weights and measures seals intact, that the termination of dealership agreement can be made and not otherwise. Learned Counsel argues further that seals on the totaliser is only to ensure that the totaliser meter reading is not manipulated and penal action can be taken only if it is established that the intended tampering of the totaliser seals has led to manipulation of totaliser reading with the weights and measures seals intact. Learned Counsel argues further that seals on the totaliser is only to ensure that the totaliser meter reading is not manipulated and penal action can be taken only if it is established that the intended tampering of the totaliser seals has led to manipulation of totaliser reading with the weights and measures seals intact. There being no allegation against the petitioner that the intended tampering or tampering of totaliser seals has resulted in manipulation of totaliser reading, no penal action could have been taken against the petitioner. 12. Respondents have countered the grounds advanced by the petitioner in this writ application by challenging the maintainability of this writ application. Shri Delip Jerath, learned Counsel for the respondents while referring to the impugned order of the respondents, submits that the impugned order was passed after allowing the petitioner a reasonable and adequate opportunity of being heard and upon considering the entire documents submitted by the petitioner. Learned Counsel explains that after the matter was remanded for conducting a fresh inquiry, adherence to the observation contained in the order passed by the Division Bench in the LPA was strictly made. The document namely the report of the Inspector, Weights and Measures Department dated 11.7.2006 was not only considered, but findings was also recorded thereon. Learned Counsel explains that as observed in the impugned order, the finding in respect of the report of the Inspector, Weights and Measures Department is that the purported inspection by the Weights and Measures inspector was made after 21 days of the date of inspection carried out by the representative of the respondent Corporation. No prior intimation was given to the respondent Corporation about any proposed inspection of Weights and Measures Department, nor was any such inspection carried out in presence of the representative of the respondent Corporation. No prior intimation was given to the respondent Corporation about any proposed inspection of Weights and Measures Department, nor was any such inspection carried out in presence of the representative of the respondent Corporation. Learned Counsel submits further that the further finding with respect to the report is that the relationship between the petitioner and the respondent Corporation is under a commercial contract and guided by the terms and the conditions of the contract under which, certain rights, including the right of termination of the dealership agreement, has been reserved with the Corporation in case where serious irregularities including the tampering of seals of dispensing unit/totaliser, are detected and under such circumstances, the report of Weights and Measures Department will have no relevance in the light of the irregularities which were detected, in course of the inspection carried out by the respondent Corporation. 13. As it appears from the rival submissions, the main ground on which the impugned order has been assailed by the petitioner, is that no finding has been recorded by the concerned authorities of the respondent Corporation in respect of the report of the Weights and Measures Department. The emphasis on the report of the Weights and Measures Department is laid by the petitioner on the ground that the Inspector, Weights and Measures Department who had conducted inspection, is an officer appointed under the Statute performing the statutory function to ensure that the seals put by him on the dispensing/totaliser unit, are intact and not tampered with. 14. The report of the Inspector, Weights and Measures Department, does confirm that on the date of his inspection i.e. on 11.7.2006, he had found the seal and cross seal of the dispensing/totaliser unit intact. As it appears, neither in the impugned order, nor in the counter-affidavit of the respondents, is there any suggestion to dispute the credibility of the report of the Inspector, Weights and Measures Department. As rightly submitted by the counsel for the petitioner, there is a presumption that the statutory functionary would act honestly and bonafidely and such presumption can be repelled only by credible evidence and cogent reasoning. 15. As it appears from the impugned order, there is no clear finding on the report of Inspector, Weights and Measures Department. As rightly submitted by the counsel for the petitioner, there is a presumption that the statutory functionary would act honestly and bonafidely and such presumption can be repelled only by credible evidence and cogent reasoning. 15. As it appears from the impugned order, there is no clear finding on the report of Inspector, Weights and Measures Department. Rather, it has been avoided mainly on the ground that the inspection carried out by the representative of the respondent Corporation would prevail upon the inspection carried out by the Inspector, Weights and Measures Department and that even otherwise, inspection was not carried out in presence of the representative of the respondent corporation. The same ground was earlier taken by the concerned authority of the respondents while passing the order of termination of the petitioner's dealership agreement and the said grounds were not accepted both by the Division Bench as well as by the Single Judge in the earlier writ applications filed by the petitioner. If the credibility of the report of the Inspector, Weights and Measures prepared on 11.7.2006, is not disputed, then the concerned authorities of the respondent corporation have to meet the findings in the Report of the Inspector and to answer as to why the same should not be considered as a reasonable explanation offered by the petitioner against the allegation contained in the earlier show-cause notice. It is relevant to note that though, in the report of inspection carried out by the representative of the respondent corporation, it has been claimed that the seal on one of the dispensing unit was found tampered, but as it appears from the pleadings of the petitioner, such allegation has been denied by the petitioner in its reply to the first show-cause notice by obtaining support from the report of the Inspector, Weights and Measures. Since the report was made available to the concerned authorities of the respondent corporation, it was their duty to consider the same and to assign reasons on the basis of the findings of the Inspector, Weights and Measures as earlier observed by the Division Bench of this Court in LPA. It may be noted that the seals on the dispensing/totaliser unit are placed by the Department of Weights and Measures in order to ensure that the meter reading of the dispensing unit are not tampered with. It may be noted that the seals on the dispensing/totaliser unit are placed by the Department of Weights and Measures in order to ensure that the meter reading of the dispensing unit are not tampered with. If the tampering of such seals would invite penal consequences under the terms of the agreement, then it has first to be established beyond dispute that there was tampering of the seals and the meter reading of the dispensing unit was manipulated. 16. The respondents cannot plead that their exercise of power under the contract with the petitioner, is independent of the statutory provisions including the Weights and Measures Act and Rules made thereunder. 17. On going through the impugned order, I find that the grounds stated therein for confirming the order of termination of the dealership agreement and the rejection of the petitioner's prayer for restoration of the dealership, are virtually the same as recorded in the earlier impugned orders, without recording any finding on the report of the Inspector, Weights and Measures Department and without assigning any cogent reasons as to why the report is rejected. The impugned order indicates that it has been passed again without application of mind. 18. Consequently, this writ application is allowed. The impugned order 22.09.2007 as contained in Annexure-18, is hereby set aside. The matter is remanded back to the respondent Corporation to pass an appropriate order afresh, in accordance with law, by complying the observations and directions passed by the Division Bench of this Court in LPA No. 621 of 2006, within a period of six weeks from the date of receipt/production of a copy of this order. However, the sales supply from the dispensing unit of the petitioner's retail outlet, shall remain suspended. Let a copy of this order be given to the counsel for the respondent. Petition allowed.