Judgment : The petitioner is a registered partnership firm. It had been appointed by Hindustan Petroleum Corporation Ltd. (hereafter the Corporation) as dealer to deal in motor spirit (petrol), high-speed diesel, lubricating oil and grease. Memo of agreement to that effect was executed on 23.10.1997. The retail outlet, being the business place of the petitioner, is situated on Central Avenue. Due to heavy rain, the area in and around the retail outlet of the petitioner was inundated. As a consequence, sales and supplies had to be stopped. The petitioner urged the Corporation to employ its contractor to take remedial steps for resumption of business activities. Mr. T.S. Gayen, Area Sales Manager of the Corporation, respondent no.3 conducted an inspection of the retail outlet and by notice dated 5.9.2005 suspended sales of motor spirit and high-speed diesel till recalibration is done. It was mentioned in the notice that on inspection, it was found that “sealed wires in both D.U.’s M.S. & HSD are broken”. In view of such notice, the petitioner approached the Inspector of Legal Metrology, Calcutta (North) with a prayer dated 5.9.2005 “for restamping of our MS & HSD dispensing unit at our service station”. Acceding to the request of the petitioner, the Inspector of Legal Metrology inspected the retail outlet and issued certificate of recalibration. Soon thereafter, on 21.9.2005, the Chief Regional Manager-Retail of the Corporation, respondent no.2, issued a “Fact Finding Letter”. The same reads as follows: “This has reference to inspection report carried out by Area Sales Manager on 05.09.2005 at the retail outlet. During the course of inspection, it was observed that the seals of meter unit of both MS and HSD were broken and consequently sales of both MS &HSD was suspended with immediate effect with the advice to recalibrate the same. Meter readings and dip readings of U/Ground tanks of both MS & HSD were recorded at the same time. View above, you are hereby called upon to explain the reasons for the above irregularities within 7 days of receipt of this letter, failing which action in terms of relevant provisions of Dealership Agreement & revised MDG 2005 will be initiated against your dealership. You are also advised to forward us copies of restamping of both MS & HSD by Legal Metrology for our further course of action on the same.” The petitioner responded by letter dated 15.10.2005, which reads as follows: “Mr. You are also advised to forward us copies of restamping of both MS & HSD by Legal Metrology for our further course of action on the same.” The petitioner responded by letter dated 15.10.2005, which reads as follows: “Mr. Gayen (A.S.M) visited the R.O. on 05.09.05 to assess the situation & he was apprised of all the developments. Mr. Gayen thereafter, carried out an inspection wherein he found everything in order, including correctness of measure but purportedly found the meter units seal wires broken although seals were intact. An inspection report was prepared and were directed to stop sales pending until recalbration. The report of the Area Sales Manager was sent to the Inspector of Legal Metrology the next day as per your directive we requested him for recalibration, which were duly carried. The Inspector of Legal Metrology found the dispensing measure accurate in all respects, seals were intact but the seal wires appeared broken or damaged. The Inspector also observed water around the meter units of the dispensing pumps. Upon handling the same to our relief, the Inspector found the seal wires not broken, A Xerox copy of the calibration certification dated 06.09.05 is enclosed herewith for your kind perusal. Subsequent to recalibration of the dispensing pumps the Area Sales Manager Mr. Gayen was immediately informed and we requested him to allow us to resume sales. Mr. Gayen, however asked us to keep sales suspended until further advice. We have not resumed sales as per his directive. We would like to submit before you that we have always headed your instructions and advice strictly in running the R.O. efficiently and especially in the above-mentioned case your instructions were followed on a day-to-day basis in all sincerity. Under the circumstances we would request you to all us to resume sales from the R.O. so that our customer base is not eroded and our sales are not lost to our competitors.” Despite response received from the petitioner, the order of suspension was not revoked as a consequence whereof there was no resumption of sales and supplies from the retail outlet. Representative of the petitioner thereafter met the respondent no.2 to allow resumption of sales and supplies. An undertaking was sought for in respect of obligation to fulfil alleged targeted quota of sale of oil products. Representative of the petitioner thereafter met the respondent no.2 to allow resumption of sales and supplies. An undertaking was sought for in respect of obligation to fulfil alleged targeted quota of sale of oil products. To buy peace, it is claimed, the petitioner undertook to sell desired quantity of motor spirit & high speed diesel on and from December, 2005, i.e. 32 Kl. However, despite such undertaking, the order of suspension was not revoked which resulted in the petitioner presenting W.P. 667 of 2006 (hereafter the former petition) on 21.4.2006 before this Court. A learned Judge of this Court by order dated 13.6.2006 admitted the writ petition and called for affidavits. Two days after admission of the former petition, the petitioner received an order dated 15.6.2006, issued by the respondent no.2 terminating the dealership. The said order, in its entirety, reads thus: “On 5th September, 2005, our Area Sales Manager, Shri T.S. Gayen inspected your Retail Outlet and found the Seal Wire of Metering Unit of both MS & HSD tampered wherein our Corporation’s Fitter was also present. Immediately sales from both MS & HSD Dispensing Units were suspended. As per Marketing Discipline Guidelines, 2005 a fact Finding letter dated 21st September, 2005, was issued to you seeking explanation for the irregularities observed. However, the explanation given by you vide your letters dated 15th October 2005, 23rd November, 2005 & 1st December, 2005, respectively were not found to be satisfactory. Apart from the above fact a series of non-performance letter Ref : VKS : NAB : RET dated 13th November, 2003, dated 29th July, 2005 and dated 16th August, 2005 (both issued by the Area Sales Manager) were issued to you. Although, the Corporation has given you opportunity and sufficient time to improve sales performance but in spite of active monitoring, you failed not only in improving sales performance but also outlook of the retail outlet due to shabby house keeping and alarming situation of unauthorized parking. As per provision of relevant clause of revised Marketing Discipline Guidelines, 2005 in relation to tampering of seals & as per Clause No.16 & 55 of the Dealership Agreement dated 23rd October, 1977, we hereby terminate the Dealership Agreement dated 23rd October, 1997 executed between you and the Corporation with immediate effect. As per provision of relevant clause of revised Marketing Discipline Guidelines, 2005 in relation to tampering of seals & as per Clause No.16 & 55 of the Dealership Agreement dated 23rd October, 1977, we hereby terminate the Dealership Agreement dated 23rd October, 1997 executed between you and the Corporation with immediate effect. Upon termination of the said agreement, the license and permission to use our site and outfit of the Corporation shall ipso facto cease and determine and should there be any money due to the Corporation, you are called upon to pay and settle your accounts and surrender the equipments, property of the Corporation, if any, within 7 (seven) days on good condition to our Area Sales Manager, Shri T.S. Gayen immediately.” The order terminating dealership has been challenged in W.P. No.808 of 2006 (hereafter the latter petition), presented before this Court on 26.6.2006. Since the issues raised in the two petitions are related and the same are at the instance of a party and against the same parties, both have been heard together and shall stand disposed of by this common judgment and order. Appearing for the petitioner, Mr. Bandopadhyay, learned advocate alleged that the order terminating the dealership is absolutely malafide. While the petitioner had been repeatedly requesting the Corporation to revoke the order of suspension and to permit it to resume sales and supplies, the respondent no.2 did not at all give any hint of termination of dealership. He contended that the impugned order has been issued to wreak vengeance against the petitioner for having approached this Court with the former petition praying for setting aside and/or cancellation of the order of suspension of sales/supplies dated 5.9.2005. According to him, the respondent no.2 abused his office by terminating the dealership without just reason and also in derogation of the Marketing Discipline Guidelines (hereafter the Guidelines). Next, he contended that the fact finding letter dated 21.9.2005, being a purported show cause notice, called upon the petitioner to explain irregularities that were observed in the inspection report dated 5.9.2005 of the respondent no.3 in respect of broken seals of dispensing units of both motor spirit and high speed diesel. However, while terminating the dealership, the respondent no.2 founded his order on alleged tampering of seal wire of metering unit of both motor spirit and high speed diesel. However, while terminating the dealership, the respondent no.2 founded his order on alleged tampering of seal wire of metering unit of both motor spirit and high speed diesel. Tampering of seal and tampering of seal wire are distinct and different offences and the charge and the conclusion being at variance, it was contended that the impugned order is bad and illegal. My attention was further drawn to clause 6.1.3 of the Guidelines to urge that opportunity envisaged therein prior to establishment of tampering of seals was not extended and, therefore, there has been gross violation of the terms thereof. It was also contended that the respondent no.2 did not assign a single reason as to why the explanation furnished by the petitioner was not found to be satisfactory. The order being a non-speaking one, it was contended that it reflects the ipse-dixit of the respondent no.2 and being in clear breach of principles of natural justice cannot be sustained in law. Finally, it was contended that the petitioner was never put on notice and given opportunity to explain why it had failed to improve sales performance. That failure to improve sales performance would be a ground for terminating the dealership was also never conveyed to the petitioner prior to the order dated 15.6.2006 and, therefore, there has been gross violation of principles of natural justice in this respect also. In support of his submission that alternative remedy would not be a bar to entertain the writ petition, Mr. Bandopadhyay relied on the decision reported in (2003) 2 SCC 107 (Harbanslal Sahnia and ano. v. Indian Oil Corporation and ors.). He further relied on the decisions reported in AIR 1990 SC 1031 (Mahabir Auto Stores v. Indian Oil Corporation), 2006 (3) Supreme Today 393 (M.V. Bijlani v. Union of India and ors.), (2006) 13 SCC 88 (Commissioner of Excise v. Manoj Ali), MANU/SC/0129/2010 (Hindustan Petroleum Corporation Ltd. v. Super Highway Services and ano.) and 2009 (1) CLJ 481 (Jayanta Kumar Pan and ano. v. Bharat Petroleum Corporation Ltd. and ors.) and urged the Court to set aside the order of termination of dealership and to direct the Corporation to resume sales/supplies at once. Answering the contentions raised on behalf of the petitioner, Mr. v. Bharat Petroleum Corporation Ltd. and ors.) and urged the Court to set aside the order of termination of dealership and to direct the Corporation to resume sales/supplies at once. Answering the contentions raised on behalf of the petitioner, Mr. Chakraborty, learned senior advocate for the respondents urged that the agreement executed by and between the Corporation and the petitioner provides for arbitration and, hence, this is not a fit and proper case where the Writ Court’s interference is warranted. According to him, whether or not the respondent no.2 was justified in terminating the dealership would require investigation of factual aspects necessitating leading of evidence. The petitioner having solemnly accepted the terms and conditions of the dealership agreement providing for a forum to determine inter se disputes and differences arising out of the agreement, he submitted that the Court of Writ may not in the circumstances exercise its extra-ordinary powers and ought to leave the petitioner to pursue the ordinary remedy provided by the agreement itself. In support of his submissions, he referred to the decisions in (1975) 2 SCC 436 (Titagarh Paper Mills v. Orissa State Electricity Board), AIR 1976 SC 127 (M/s. Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board and ano.), AIR 2003 SC 2881 (Hindustan Petroleum Corporation Ltd. v. M/s. Pinkcity Midway Petroleums), AIR 2005 SC 3454 (Mrs. Sanjana Wig v. Hindustan Petro Corporation Ltd.) and 91 CWN 217 (Hindusthan Petroleum Corporation Ltd. v. Shyam Sundar Ganeriwala) to persuade me not to exercise writ powers in favour of the petitioner. By referring to the decision reported in Harbanslal Sahnia (supra) relied on by the petitioner, he contended that a Court of Writ would be justified in entertaining a writ petition despite alternative remedy only if either of the well-recognised exceptions are satisfied, viz. (i) where the petitioner complains of violation of fundamental right; (ii) where the petitioner complains of breach of principles of natural justice leading to prejudice suffered by him; (iii) where the act complained of suffers from gross jurisdictional error; and (iv) where validity of a particular statute is in question. Inviting my attention to the facts of the present case, Mr. Chakraborty endeavoured to impress that there had been no invasion of the fundamental right of the petitioner, and also no breach of principles of natural justice had occasioned. Inviting my attention to the facts of the present case, Mr. Chakraborty endeavoured to impress that there had been no invasion of the fundamental right of the petitioner, and also no breach of principles of natural justice had occasioned. It was contended that if at all any right of the petitioner has been breached by reason of the impugned termination, that is entirely a contractual right and the Writ Court is not the appropriate forum for impeaching contractual obligations. The petitioner was put on notice before the impugned action was taken and its reply was duly considered. Therefore, question of violation of principles of natural justice does not arise. Further, it had not been contended by the petitioner that the second respondent did not have the power to terminate the dealership and, therefore, it is also not a case of an act in excess of jurisdiction. Finally, vires of any statute is not in question herein. According to him, none of the exceptions having been satisfied the Court ought to relegate the petitioner to the forum available under the agreement. While resisting the petition on merits, Mr. Chakraborty produced in Court an apparatus to demonstrate how a wire could be broken without tampering with the seal. According to him, if the wire is broken keeping the seal intact, a wheel to which the wire is supposed to be tied can be rotated leading to a distinct possibility of manipulating the quantity of petrol/diesel to be supplied to the customer. In other words, by breaking the seal wire but without touching the seal, an unscrupulous distributor could be in a position to deprive the consumer of the exact quantity of petrol/diesel for which he has paid. It was contended that it is immaterial whether in the present case the petitioner had manipulated the wheel or not. According to him, very fact that the seal-wire was found broken gives rise to a presumption that the same was for ulterior gains and the Corporation by proceeding against the petitioner did not commit any illegality. It was contended that it is immaterial whether in the present case the petitioner had manipulated the wheel or not. According to him, very fact that the seal-wire was found broken gives rise to a presumption that the same was for ulterior gains and the Corporation by proceeding against the petitioner did not commit any illegality. Continuing his argument, he referred to the reply of the petitioner dated 15.10.2005 (extracted supra) and contended that the petitioner had admitted that the seal wire was found broken and, therefore, if the respondent no.2 had acted on such admission to return findings adverse to the petitioner, the Court of Writ ought not to act as an appellate authority in respect of finding of facts reached by the administrative authority. Next, he referred to the provisions contained in clause 6.1.3 of the Guidelines and submitted that the same had been observed without fail. The explanation furnished by the petitioner not having been found to be satisfactory, the offence of breaking of seal-wires was treated to be a case of seal tampering and in terms of Appendix 1 thereto, termination of dealership was the logical conclusion irrespective of delivery being short/correct/excess. Mr. Chakraborty, accordingly, urged that the Court ought to dismiss the writ petition. I have heard the parties and considered the materials on record. Although Mr. Chakraborty has not advanced any argument in relation to the allegation of the petitioner that termination of dealership by the respondent no.2 48 hours after admission of the former writ petition is tainted with malice, I am not inclined to uphold this contention. It is to be noted that despite alleging malafide against the respondent no.2, the officer concerned has not been arrayed in the writ petition as respondent eon mine and, hence, he had no occasion to deal with the allegation of malafide. The objection raised by the petitioner, being untenable, is overruled. However, I find substance in the contention of Mr. Bandopadhyay that in the present case there has been gross violation of principles of natural justice. I now proceed to give my reason in support of such conclusion. The objection raised by the petitioner, being untenable, is overruled. However, I find substance in the contention of Mr. Bandopadhyay that in the present case there has been gross violation of principles of natural justice. I now proceed to give my reason in support of such conclusion. Clause 6.1.3 of the Guidelines reads as under: “6.1.3 Short Delivery of Products a) With Weights & Measures Seals Intact Sales through the concerned dispensing unit to be suspended forthwith, in case the explanation offered is satisfactory, recalibration/re-stamping to be done in the presence of an Oil Company officer before recommencement of sales. In case the explanation is found satisfactory, the offence will be treated as if this is a case of seal tampering and action taken accordingly. b) With Weights & Measures Seals tampered If it is established that the W & M seal is tampered, Penal action as given in Appendix – I to be taken, even if the delivery is found to be correct or excess.” There is an apparent omission of either the word ‘not’ or the letters ‘un’ before the word ‘satisfactory’ in the last sentence of sub-clause (a) of clause 6.1.3. This position has been accepted by the parties. A purposive construction of sub-clause (a), notwithstanding apparent omission as indicated above, would lead one to the irresistible conclusion that a satisfactory explanation from the distributor would result in a direction for recalibration/restamping whereas an explanation which is either not satisfactory or unsatisfactory would lead to the offence being treated as one of seal tampering attracting penal action. Once the stage contemplated by clause (a) is over, the Corporation must be held to have reached a prima facie conclusion that an offence of tampering with seals had been committed calling for penal action. It is then under an obligation to follow the course of action laid down in sub-clause (b) for the purpose of reaching a conclusion that Weights & Measures seals have been tampered. Sub-clause (b) speaks of establishment of tampering of seal. Although clause (b) is rather cryptically worded, it does not exclude application of natural justice principles even by implication. It is then under an obligation to follow the course of action laid down in sub-clause (b) for the purpose of reaching a conclusion that Weights & Measures seals have been tampered. Sub-clause (b) speaks of establishment of tampering of seal. Although clause (b) is rather cryptically worded, it does not exclude application of natural justice principles even by implication. In my view, natural justice principles must be read even in clause (b) or else a party would stand to be condemned unheard and thereby deprived of a safeguard which must be made available having regard to the fact that termination of dealership entails serious consequences. Since clause (a) envisages the offence to be ‘treated’ as a case of seal tampering and clause (b) ordains penal action to follow if seal tampering is ‘established’, it would require that between ‘treated’ as in clause (a) and ‘established’ as in clause (b), a party ought to be given opportunity to explain not only in respect of penal action that the Corporation may propose to take as enumerated in Appendix I but also in respect of the charge of commission of an offence of seal tampering. Unless clause (b) is so construed, it would fail to pass the test of fairness and reasonableness. Here, immediately upon a finding that the explanation furnished by the petitioner was not found satisfactory, penal action followed in the shape of termination of dealership. It is apparent from the notice dated 21.9.2005 that the respondent no.2 had embarked on a mission of ‘fact finding’ asking the petitioner to explain the circumstances resulting in breaking of seal-wire. Provisions contained in clause 6.1.3, as construed above, do not contemplate penal action straightaway on an explanation found to be not satisfactory or unsatisfactory in a case where the seal is intact. The respondent no.2 jumped one step ahead without calling upon the petitioner to raise its defence in respect of the charge of tampering of seal. By taking one step too early rendered the action of the respondent no.2 in terminating the dealership by the impugned order vitiated for breach of principles of natural justice and, therefore, must be held to attract power of judicial review notwithstanding availability of a forum under the agreement. I am afraid, I am not in a position to accept Mr. By taking one step too early rendered the action of the respondent no.2 in terminating the dealership by the impugned order vitiated for breach of principles of natural justice and, therefore, must be held to attract power of judicial review notwithstanding availability of a forum under the agreement. I am afraid, I am not in a position to accept Mr. Chakraborty’s contention that penal action would automatically follow a finding that the explanation is either unsatisfactory or not satisfactory. If his contention is to be upheld, the opening words of clause (b) “if it is established’ would cease to have any meaning. Even if Mr. Chakraborty’s contention is considered to be right, the fact that tampering of seal was established, as required by clause (b), does not find any reflection in the impugned order. The reasons which weighed in the mind of the respondent no.2 in holding the explanation to be not satisfactory are also not reflected. Furnishing of reasons is now considered to be an integral part of the rules of natural justice. Whether or not further penal action is called for must not be allowed to depend on the whim, fancy or caprice of an officer. As has been held in the decision reported in (2008) 1 CAL LT 1 (HC) (In the matter of : Uniworth Resorts Limited), the twin tests of ‘why’ and ‘what’ are required to be satisfied. There is no element of ‘why’ for the ‘what’ in the impugned order and, thus, the same cannot withstand judicial scrutiny. From whichever angle one considers the impugned order, there can be no escape from the legal position that provisions contained in clause 6.1.3 of the Guidelines appear to have been observed in the breach. I am not too impressed with the contention of Mr. Chakraborty that the petitioner had admitted that the seal-wire was broken, as would appear from its reply dated 15.10.2005. Upon perusal of the reply, I am of the considered view that there has been no admission that could have been acted upon to nail the petitioner. On the contrary, from the concluding part of the reply it appears that “the Inspector found the seal wires not broken” was the ultimate stand of the petitioner. Upon perusal of the reply, I am of the considered view that there has been no admission that could have been acted upon to nail the petitioner. On the contrary, from the concluding part of the reply it appears that “the Inspector found the seal wires not broken” was the ultimate stand of the petitioner. How far such stand is credit-worthy could only have been determined if opportunity was extended to the petitioner to lead evidence on the principle that he who asserts must prove. Admittedly, that was not done. Even otherwise, it is always open to a party making an admission to explain why such admission should not be acted upon [see (2004) 8 SCC 88 (Delhi Transport Corporation v. Shyam Lal)]. The contention that the petitioner admitted the offence, therefore, is without substance. Also, I hold that the respondent no.2 acted in excess of jurisdiction in viewing non-improvement of sales performance, shabby house keeping of the retail outlet and alarming situation of unauthorized parking as grounds for terminating the dealership. The petitioner was never informed beforehand that for such reasons the dealership agreement is liable to be terminated. The petitioner has, therefore, been penalised for an offence for which there was not even a formal charge detailing the penal action that would be attracted in the event of failure to furnish satisfactory explanation. Although Mr. Chakraborty is right in his contention that the same was not the sole ground for termination of dealership, it is unknown as to what extent the additional ground influenced the mind of the respondent no.2 while terminating the dealership. Application of the doctrine of severability, in the circumstances, would not arise. The impugned order merits interdiction on this ground too. The decisions cited by Mr. Chakraborty have been considered. In view of my finding that natural justice had indeed been violated and the respondent no.2 committed error of law causing grave injustice to the petitioner, availability of a forum under the agreement is not considered worthy enough to operate as a bar for exercising writ powers. Decisions are legion that availability of an alternative remedy does not oust the jurisdiction of the Writ Court. The rule requiring exhaustion of alternative remedy is not a rule of law but one of convenience and discretion, a self11 imposed restraint. Decisions are legion that availability of an alternative remedy does not oust the jurisdiction of the Writ Court. The rule requiring exhaustion of alternative remedy is not a rule of law but one of convenience and discretion, a self11 imposed restraint. To relegate the petitioner at this stage to the arbitrator, having found the impugned termination to be contrary to law and not fair, would not be in the interest of justice. I have thus no hesitation to hold that the impugned order terminating the dealership cannot be sustained in law and as such is liable to be set aside. It is ordered accordingly. Now the question of appropriate relief to be granted in the circumstances would exercise my consideration. Once proceedings, quasi-judicial in nature, initiated against the petitioner for termination of dealership have been interdicted by the Court on the ground of violation of natural justice, the appropriate course is to remand the matter back to be recommenced from the stage the violation surfaced. In normal circumstances, an order of remand to the respondent no.2 would have been reasonable with a direction upon the concerned officer to conclude the proceedings within a particular time-frame. Since the respondent no.2 had the occasion to deal with these proceedings and has given a decision adverse to the interest of the petitioner, it would be unfair if the petitioner is asked to face him in the chair of adjudicator, once again. The petitioner may well consider him to be biased. Keeping in mind the principle that justice must also be seen to have been done, I direct the Chairman-cum-Managing Director of the Corporation to the allegation of seal tampering adjudicated by appointing any officer above the rank of the respondent no.2, if at all the Corporation intends to proceed further against the petitioner. A show cause notice shall be served on the petitioner, within a month from date, calling upon it to explain as to why its dealership shall not be terminated treating the offence as one of seal tampering. The notice must contain some reflection of why the Corporation treats the offence as one of seal tampering. It shall be open to the petitioner to furnish explanation within a fortnight from date of receipt of such show cause notice as to why breaking of seals is not to be treated as an offence and that no penalty is called for. It shall be open to the petitioner to furnish explanation within a fortnight from date of receipt of such show cause notice as to why breaking of seals is not to be treated as an offence and that no penalty is called for. After giving the petitioner an opportunity of hearing as well as opportunity to lead evidence, the officer appointed by the Chairman-cum-Managing Director shall proceed to give his final decision within a further period of eight weeks from date of receipt of explanation from the petitioner. The order of suspension shall abide by the result of the order to be given by the officer concerned. In the event show cause notice is not issued within a month or the proceedings cannot be concluded within eight weeks from date of receipt of explanation from the petitioner, the order of suspension shall stand revoked and business activities at the retail outlet as the case may be, shall be allowed to resume. However, such resumption and continuance shall abide by the final decision to be given by the Corporation. If the Corporation does not wish to proceed further against the petitioner such decision shall be duly conveyed to it. Both the petitions stand disposed of with the aforesaid directions without order for costs. Urgent photostat certified copy of this judgment and order, if applied for, shall be given to the applicant as early as possible.