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2013 DIGILAW 1364 (JHR)

Bharat Petroleum Corporation Ltd. v. Petroleum Corporation

2013-12-17

APARESH KUMAR SINGH, R.BANUMATHI

body2013
Order : We have heard learned counsel for the appellant and learned counsel for the contesting respondent no. 2. 2. The appellant is aggrieved by the judgment dated 8.12.2011 passed by the learned Single Judge by which the writ petition preferred by the contesting respondent was allowed and the termination of the dealership vide order dated 17.03.2010 was quashed. 3. The writ petitioner had initially approached this Court by filing writ petition, being W.P.(C) No. 618 of 2008 inter-alia for directing the authorities to sign Form II and/or DTO Licence Form claiming that it is running the retail outlet at Nimiaghat of the Corporation selling motor spirit and high speed diesel since 1963. The writ petitioner approached this Court with a grievance that its Licensing Order of 1995 were due to expire on 31.12.2007 and the Bharat Petroleum Corporation Ltd. was not taking any decision on the writ petitioner's application for continuance of the dealership in its favour. During pendency of the writ petition, the order of termination of its dealership was passed on 17.3.2010 by the Corporation which was challenged by way of Interlocutory Application. The writ petitioner confined its prayer to quashing of the said order of termination before the learned Single Judge. The learned Single Judge after hearing the counsel for the parties found that the Corporation had not granted due opportunity of hearing to the writ petitioner and on the date i.e. on 27.4.2009 when the writ petition itself was listed for hearing, the Corporation refused to give further adjournment and subsequently terminated the dealership of the petitioner. Learned Single Judge found that it was the Corporation's own case that they had chosen to give at least three opportunities of hearing and they were conscious of the fact that on 27.4.2009 the writ petition was to be heard and they were also respondents in the said writ petition. In the aforesaid circumstances, the learned Single Judge found that there has been a violation of principles of natural justice and the impugned order of termination of dealership was quashed by giving the respondent-Corporation a liberty to proceed against the writ petitioner in accordance with the procedure established by law. 4. In the aforesaid circumstances, the learned Single Judge found that there has been a violation of principles of natural justice and the impugned order of termination of dealership was quashed by giving the respondent-Corporation a liberty to proceed against the writ petitioner in accordance with the procedure established by law. 4. The present appellant i.e. Bharat Petroleum Corporation Ltd. has challenged the said order inter-alia on the grounds that the dealership of the writ petitioner was inspected by the authorities of the Corporation and certain irregularities were detected for which a notice was issued on 7.1.2008 itself. The inspection, inter-alia, revealed that certain unauthorized additional fitting consisting of IC Circuits/electronic condenser etc. with cables were found fitted in two of their MPD (dispensing Units) provided by the Corporation and further two numbers of remote control was being used to operate the said electronic circuit. 5. These acts were found to be in violation of MDG, 2005 guidelines which stipulated penal action in the nature of termination of the dealership itself apart from other penal consequences. The writ petitioner's response to the aforesaid show cause notice was also considered by them and they chose to give at least three opportunities of personal hearing to the dealer before taking any precipitate action. It is contended on their behalf that the first date of hearing was on 20.11.2008, on which date the dealer appeared but the proceedings could not be conducted as he left regional office after waiting for some time without intimating them. The next hearing was scheduled on 10.3.2009. On 9.3.2009 they again informed by way of e-mail that they would not be able to attend the meeting due to festive season. The writ petitioner was again informed on 17.4.2009 that the next date of hearing would be 27.4.2009. However, the petitioner failed to appear on 27.4.2009 and thereafter, the Corporation has passed the order of termination finding breach of the agreement and terms of the MDG guidelines under which it was being operated after due compliance of principles of natural justice. In such circumstances, it has been contended that the findings recorded by the learned Single Judge is in violation of principles of natural justice is not proper and hence, the impugned judgment needs to be set aside. 6. Learned counsel for the contesting respondent Nos. In such circumstances, it has been contended that the findings recorded by the learned Single Judge is in violation of principles of natural justice is not proper and hence, the impugned judgment needs to be set aside. 6. Learned counsel for the contesting respondent Nos. 1 and 2 however, submits that the learned Single Judge has quashed the order of termination only on the ground that though the appellant-Corporation had itself chosen to grant personal opportunity of hearing to the dealer-writ petitioner, but in spite of the fact that they were aware that on the same date, the writ petition itself was listed for hearing, no adjournment was granted to them though intimation was sent on their behalf. It is further submitted that if the writ petitioner was allowed appropriate opportunity of hearing, they would be able to explain their defence against irregularities alleged against them in Show-cause issued on 07.01.2008. It is further contended that the impugned order of termination has been passed on 17.3.2010, almost 11 months after the last date fixed for hearing. It is further submitted that the appellant was granted full liberty to proceed against the petitioner in accordance with procedure established by law and learned Single Judge did not make any comments upon merits of the case. The impugned judgment, therefore, need not to be interfered with. 7. We have heard learned counsel for the appellant as well as counsel for respondent nos. 1 and 2 and gone through the relevant materials on record. 8. It is not in dispute that the dealership in favour of the writ petitioner was in existence since 1963. It appears that the Corporation had an occasion to issue show cause notice against the writ petitioner based upon certain inspection carried out. The writ petitioner itself responded to the show cause by filing its reply on 18.1.2008 and upon consideration of its show cause, the Corporation chose to give three personal hearings to the writ petitioner. The dates of those three hearing are 20.11.2008, 10.3.2009 and 27.4.2009. Obviously, the date of personal hearings were spread over a period of almost six months. It is also true that on 27.4.2009, the writ petition itself was listed before the learned Single Judge. The Corporation admittedly was aware of the date of listing of the writ petition for hearing before the learned Single Judge as is also appearing from the impugned judgment. It is also true that on 27.4.2009, the writ petition itself was listed before the learned Single Judge. The Corporation admittedly was aware of the date of listing of the writ petition for hearing before the learned Single Judge as is also appearing from the impugned judgment. It further appears that though the writ petition was itself listed on 27.4.2009 and writ petitioner had requested for an adjournment to the appellant-Corporation but it chose to refuse the same. In the aforesaid background of facts and circumstances, learned Single Judge found that the stand of the Corporation to deny opportunity of hearing on the date i.e. 27.4.2009 amounted to violation of principles of natural justice when they themselves had decided to give opportunity of hearing before passing of any adverse order. It further appears that impugned order was passed after almost 11 months of the last date of hearing i.e. on 17.3.2010. In these circumstances, therefore, the learned Single Judge was fully justified in setting aside the impugned order of termination for violation of principles of natural justice and not granting personal hearing to the petitioner. The Corporation instead of taking a decision on merits, after complying of principles of natural justice however, chose to prefer this present appeal in May, 2012. In view of the aforesaid stand taken by the Corporation, the matter could not attain finality and remain pending till date awaiting the fate of the instant appeal. We, however, do not find any infirmity in the judgment passed by the learned Single Judge, which has been passed purely on the ground of violation of principles of natural justice and no observation has been made on the merits of the claim of the parties. In these circumstances, we do not find any reason to interfere with the instant L.P.A., which is, accordingly, dismissed. 9. However, the writ petitioner shall appear before the Competent Authority who shall take a decision in the matter in accordance with law.