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2012 DIGILAW 51 (PAT)

Ashoka Auto Service, a Partnership v. Indian Oil Corporation Ltd.

2012-01-12

S.N.HUSSAIN

body2012
Order This writ petition has been filed by the petitioners challenging letter dated 12.5.2010 (Annexure-9), by which the Sr. Divisional Retail Sales Manager, Indian Oil Corporation Ltd., Muzaffarpur (respondent no. 4) terminated the dealership of the petitioners and also challenging order dated 27.9.2010 (Annexure-12), by which the Executive Director (Retail Sales), Indian Oil Corporation Ltd., Mumbai dismissed the appeal filed by the petitioners against the order of termination and also for directing respondent-authorities to reinstate the dealership of the petitioners and permit them to resume the sales and supply of petroleum products to the retail outlet. 2. Learned counsel for the petitioners stated that random inspection of the petitioners' dealership was made by the authorities of the Indian Oil Corporation Ltd. (hereinafter referred to as 'the Corporation' for the sake of brevity) and a report dated 22.8.2009 (Annexure-1) was submitted, in which totalizer seals were found to be intact and variation was within permissible limit. He also submitted that on 21.8.2009 a surprise inspection was done and the report submitted on 21.8.2009 (Annexure-2 series) was only in letter form and not in the prescribed format and the correct reading of totalizer was 3368480 as claimed by the respondents and hence there was no violation at all. He also stated that there was no report of the authority as required therein. 3. Learned counsel for the petitioners also averred that the petitioners filed their objections dated 19.10.2009 (Annexure-4), 28.12.2009 (Annexure-6) and 8.3.2010 (Annexure-7) regarding genuineness of calculation, but neither those objections were rejected nor their prayer was allowed. 4. Learned counsel for the petitioners claimed that in spite of the aforesaid facts and circumstances the impugned order dated 12.5.2010 (Annexure-9) was issued by the authorities terminating the dealership of the petitioners with immediate effect on the assumption that unauthorized purchase/sale of HSD had taken place at the petitioners' outlet, which was violative of Clause 6.1.7 of MDG 2005 and also violative of Clauses 44 and 45(i) of the dealership agreement dated 16.6.2006 and the explanation of the petitioners for stock variation beyond the permissible limit was found to be unacceptable and not satisfactory . 5. 5. Learned counsel for the petitioners argued that the aforesaid facts were not considered by the appellate authority also, who rejected the petitioners' appeal committing the same mistakes although there was no document, wherein the petitioners admitted that the totalizer reading was correct nor was there any finding in that regard. Hence he prayed that justice be done in totality one way or the other. 6. On the other hand, learned counsel for the respondents submitted that earlier the petitioners never claimed that reading of the totalizer meter was wrong and before the authorities they had always raised .other grounds. Hence the question of fact with respect to totalizer meter has been raised by the petitioners for the first time in this writ petition. 7. Learned counsel for the respondents averred that there were three inspection reports, which clearly showed that the petitioners had violated the clauses of MDG-2005 as well as the clauses of, dealership agreement and all the factual aspects of the matter including the points raised by the petitioners in this writ petition had been extensively dealt with by the appellate authority. Hence there was no occasion for any interference with the' Impugned orders of the authorities. 8. From the arguments raised by learned counsel for the parties and the materials on record, it is quite apparent that there were inspection reports of the authorities concerned, which showed that there was positive stock variation of 6541 litres of HSD and the petitioners refused 10 sign on the inspection report and did not allow to seal the dispensing units. It is also apparent from the objections of the petitioners contained in Annexures-4, 6 and 7 of the writ petition that the petitioners never raised any objection that the recording of the totalizer meter was wrong. Thus, the said question of fact has been raised by the petitioners for the first time before this Court in the instant writ petition. 9. In the said circumstances, the Sr. Divisional Retail Sales Manager of the Corporation, after considering the matter, rightly passed his impugned order dated 12.5.2010 (Annexure-9). While deciding the appeal filed by the petitioners, the appellate authority also considered the entire matter in detail and passed his impugned order dated 27.9.2010 (Annexure-12) dismissing the appeal. 9. In the said circumstances, the Sr. Divisional Retail Sales Manager of the Corporation, after considering the matter, rightly passed his impugned order dated 12.5.2010 (Annexure-9). While deciding the appeal filed by the petitioners, the appellate authority also considered the entire matter in detail and passed his impugned order dated 27.9.2010 (Annexure-12) dismissing the appeal. The appellate authority considered the clauses of stock variation of MS/HSD and also the clauses of agreement between the parties and dealt with each and every points raised by the petitioners and also after considering all the documents on record came to the following findings:- (a) In the inspection, the totalizer reading was recorded, but in none of their letters, the appellants denied the totalizer reading. Hence on the basis of tank deep recorded in letter dated 28.0.2009 (sic-21.8.2009?), the existence of positive stock variation of 6541 litres is correct. (b) The fact that in none of their replies to Muzaffarpur DO/Bihar State Office the appellants refuted the totalizer reading of 3368480 or claimed it to be 3362474.1 and the reading of 3368480 was recorded by team of officers on 21.8.2009 as well as on 22.8.2009 established that the correct totalizer reading was 3368480. (c) Based on the above it can be concluded that the irregularity of stock variation beyond permissible limits in HSD is established and the appellants explanation on the same is unsatisfactory. (d) Regarding the appellants' reservation that none of the officials who inspected the Retail Outlet on 21.8.2009 was the Field Officer, it may be mentioned that all officers of Corporation are authorized to inspect a Retail Outlet. (e) Regarding the appellants' contention that the letters dated 21.8.2009 and 22.8.2009 were handed over on 24.8.2009 it is observed that although no date has been put by the appellants while acknowledging letter dated 21.8.2009, they have put the date as 22.8.2009 while receiving letter dated 22.8.2009. This indicates that they received letter dated 22.8.2009 on 22.8.2009 itself. (f) Regarding appellants' contention that opportunity of hearing was not given, it is observed that the decision of termination was taken by Corporation by issuing proper show cause notice and after considering the replies of the appellants, as envisaged under MDG 2005. (g) During the hearing the appellants maintained that they were asked to submit DO for resumption of supplies which they did but the DO was returned on 28.12.2009. (g) During the hearing the appellants maintained that they were asked to submit DO for resumption of supplies which they did but the DO was returned on 28.12.2009. They however mentioned that they do not have any proof of submission/return of DO. (h) In view of the above, it is decided that the termination of the subject .dealership for the irregularity of stock variation beyond permissible limits is in accordance with MDG 2005. There is nothing to interfere with the order dated 12.5.2010 of Corporation in the matter and therefore the appeal stands dismissed. 10. In the aforesaid facts and circumstances, this Court does not find any illegality in the impugned orders of the authorities concerned nor does it find any reason to interfere in such matters. Accordingly, this writ petition is dismissed.