JUDGMENT : 1. The Extra ordinary writ jurisdiction of this Court has been sought to be invoked by filing this application under Article 226 of the Constitution of India. 2. The petitioners have assailed an order of termination of his dealership of a retail outlet allotted by the Indian Corporation of Indian Limited (IOCL). Against the impugned order of termination dated 04.12.2012, the petitioners had preferred a departmental appeal which, however, was also rejected vide an order dated 22.05.2013. Accordingly, the petitioner is before this Court. 3. The brief facts leading to filing of the instant writ petition can be put in a nut-shell as follows:-. 4. The petitioner no.1 which is a proprietorship firm represented by the petitioner no.2 was allotted a retail outlet for running a petrol pump by the IOCL and in this regard, a dealership agreement was executed on 29.03.2008. The petitioners have projected that they had maintained highest standard in running the petrol pump in question and there was no complaints of any anomalies in running the same. 5. However, on 25.02.2012, a team of Anti Adulteration Cell of the IOCL inspected the retail outlet of the petitioners and suspended the operation for the reason of unauthorized fittings in the form of a second set of gears "in the dispensing unit". It is the case of the petitioners that subsequently on 14.03.2012, another inspection was carried out by the IOCL and as per the petitioners, the findings in the 2nd inspection was different from the first inspection dated 25.02.2012. 6. Noticing the discrepancies and anomalies, a Show-Cause Notice dated 10.07.2012 was issued to the petitioners which was replied to. However, vide the impugned order dated 04.12.2012, the dealership agreement was terminated. As stated above, the Departmental Appeal of the petitioners was also rejected vide the order dated 22.05.2013. 7. I have heard Shri S.K. Talukdar, the learned counsel for the petitioners. I have also heard Shri M.K. Choudhury, the learned Senior counsel assisted by Shri M. Sarma, the learned counsel appearing for the Indian Oil Corporation Limited. 8. As stated above, the Departmental Appeal of the petitioners was also rejected vide the order dated 22.05.2013. 7. I have heard Shri S.K. Talukdar, the learned counsel for the petitioners. I have also heard Shri M.K. Choudhury, the learned Senior counsel assisted by Shri M. Sarma, the learned counsel appearing for the Indian Oil Corporation Limited. 8. Shri Talukdar, the learned counsel for the petitioners assails the impugned action on 2 (two) broad grounds: (i) Absence of officials of the Legal Metrology Department during the inspection which is the competent authority to detect any anomalies in the fuel supplying device; (ii) Violation of principles of natural justice inasmuch as, the 2nd inspection was done on 14.03.2012 and without affording a copy of the report of the same, the response of the petitioner was sought for on the proposal for termination of dealership. 9. Dilating his submission on the first ground, Shri Talukdar, the learned counsel submits that under the agreement in question dated 29.03.2008, all inspection regarding malpractice has to be done in presence of the Inspector of the Legal Metrology Department, a practice which has been consistently followed from the date of installation of the Petrol Pump in question. However, when the inspection was made on 25.02.2012, no such official of the Legal Metrology Department was present and therefore, the team was incompetent to report any anomaly or malpractice connected with running of the retail outlet. It is the submission that presence of such official of the Legal Metrology Department is a sine qua non for such inspection and in absence of the same, no findings of malpractice could not have been recorded. 10. As regards the 2nd ground, it is submitted that the report of the 2nd inspection dated 14.03.2012 is a basis of issuing the Show-Cause Notice and therefore, non furnishing of a copy of the report along with the Show-Cause Notice would render the entire proceedings non-est in law. 11. It is submitted that bare perusal of the Show-Cause Notice dated 10.07.2012 reveals that the report of the 2nd inspection dated 14.03.2012 has not only been mentioned but wholly relied upon to substantiate the allegations made against the petitioners. 11. It is submitted that bare perusal of the Show-Cause Notice dated 10.07.2012 reveals that the report of the 2nd inspection dated 14.03.2012 has not only been mentioned but wholly relied upon to substantiate the allegations made against the petitioners. It is in the context, it is submitted that since such report forms the basis of the allegation, the requirement of principles of natural justice would be to furnish a copy of the report dated 14.03.2012 to the petitioner so as to enable them to make an effective reply. 12. The learned counsel for the petitioners submits that no irrebutable presumption can be drawn that it is the petitioners alone who are involved in installing the 2nd gear in the device. Further, it is an admitted fact that there is instance that 2nd additional bolts were installed in the device by the authorized agents of the respondent corporation. The learned counsel submits that when the installation of the device is by respondent corporation and all technical actions are taken by it, the petitioners cannot be put to fault for any discrepancy/anomalies in the said device. These submissions have been made in connection with the fact that the petitioner No. 2 who is the proprietor of the petitioner No.1 was not present when the inspection was made on 25.02.2012. It is submitted that such inspection should have been preceded by a notice. 13. Referring to the Marketing Discipline Guidelines governing the parties, more specifically, Clause 8.5.6, the learned counsel for the petitioners submits that it is mandatory to accompany a Show-Cause Notice by all reports and other documents which forms the basis of the notice. However, in the instant case, the 2nd inspection report dated 14.03.2012 was not made a part of the Show-Cause Notice. It has been categorically submitted that since the report is adverse to the interest of the petitioners, it was incumbent upon the respondent authorities to furnish a copy of the same and failure to do so has vitiated the entire proceeding. 14. Referring to a decision of the Honb’le Supreme Court in the case of Hindustan Petroleum Corporation Limited and Ors. 14. Referring to a decision of the Honb’le Supreme Court in the case of Hindustan Petroleum Corporation Limited and Ors. vs. Super Highway Services and Another., reported in (2010) 3 SCC 321 , the learned counsel for the petitioners submits that in a similar facts and circumstances, the interference made by the High Court against the cancellation of dealership has been up- held by the Hon’ble Apex Court. By placing reliance in the cases of Ramana Dayaram Shetty vs. the International Airport, reported in (1979)3 SCC 489 and Kumari Shrilekha Vidyarthi and Ors., vs. State of U.P. and Ors., reported in (1991) 1 SCC 212 , the learned counsel has submitted that even in contractual relationship when such contract is with the State or its instrumentalities, in case of unreasonable, arbitrary or irrational action, the same can be successfully challenged by filing a writ petition. The test would be as to whether the rights guaranteed under Article 14 of the Constitution of India are affected. 15. Consequently, it is submitted that due to such impugned action, grave prejudice has been suffered by the petitioners and on the ground of denial of reasonable opportunity to defend their case, the impugned penalty cannot be sustained in law. 16. Per contra, Shri M.K. Choudhury, the learned Sr. Counsel for the respondent IOC raises a preliminary ground on the maintainability of the writ petition itself. It is submitted that the challenge which has been made in this writ proceeding arises out of a contract and remedies are available to the petitioners to claim damage, if he can successfully establish any breach of such contract. 17. The learned Sr. Counsel submits that allegations of malpractice had a direct bearing to the interest of public inasmuch as it is the public who are the victims and made to suffer because of such malpractice. 18. Referring to the inspection report (Annexure-3 to the writ petition), it is submitted that though there were 2 (two) pumping device, the second, HSD was out of order and so far HSD-1 was concerned, double gears was found in the gear train. The said inspection was admittedly done in the presence of the representative of the petitioner No.1. The Sr. Counsel further submits that a writ Court may not go into the nature of the allegations and would confine its scrutiny to the decision making process only. The said inspection was admittedly done in the presence of the representative of the petitioner No.1. The Sr. Counsel further submits that a writ Court may not go into the nature of the allegations and would confine its scrutiny to the decision making process only. Submission has been made that in none of the replies or even in the Memo of the Appeal, the petitioners have not been able to explain as to how double gears could have been installed when admittedly all the equipments in the Petrol Pump including the pumping devices are in the custody of the petitioners. It is submitted that installation of another set of gears is itself a mis-conduct and constitutes violation of the dealership agreement which calls for imposition of a penalty. As regards the 2nd inspection made on 14.03.2012, the Sr. Counsel submits that the same had to be done only to ascertain as to how the 2nd set of gears could be installed without there being apparent signs of manipulation of the cover or the W&M seals. The said exercise was done so that the respondents-corporation could be alert in future with regard to similar incidents that may occur. 19. It is the categorical submission of the learned Sr. Counsel that the 2nd inspection report though mentioned in the Show-Cause Notice is not the basis of the allegation against the petitioners and therefore, there was no legal requirement to furnish a copy of the said report to the petitioners along with the Show-Cause Notice. The learned Sr. Counsel further submits that mentioning of such 2nd inspection in the Show-Cause Notice rather displays fairness in the Administrative Action and coupled with the fact that neither in the reply to the Show-Cause Notice nor in the appeal filed before the appellate authority, such ground of prejudice being taken, it would be too late to urge the said ground in a writ proceeding. It is submitted that as per settled law, no new ground can be taken up for the first time in a writ petition and therefore, the 2nd ground ought not to be taken into consideration at all. 20. The learned Sr. Counsel reiterates that at no point of time, the petitioner has categorically denied his role in installing extra gears in the device and his reply is merely evasive. 20. The learned Sr. Counsel reiterates that at no point of time, the petitioner has categorically denied his role in installing extra gears in the device and his reply is merely evasive. He further submits that the principles of law laid down in a judgment has to be examined from the facts and circumstances of that case and referring to the case of Hindustan Petroleum Corporation Limited (supra), it is submitted that the facts are totally distinguishable. As regards the submission of rebuttable presumption on the involvement of the petitioners in installing the 2nd gear, the learned Sr. Counsel submits that admittedly the Petrol Pump is under the custody of the petitioners and it is the petitioners alone who stand to benefit by such malpractice and therefore, the submission of the petitioner is not acceptable. Regarding the submission that the petitioner no.2 was not present on the date of first inspection on 25.02.2012 Shri. Choudhury, the learned Sr. Counsel submits that the report makes it apparent that the Manager who is the authorized representative of the petitioner no. 1 was very much present. Regarding the submission of issuing notice prior to such inspection, Shri. Choudhury submits that such submission is not justified inasmuch as, the very object of making a sudden inspection would be defeated. In fact, it is the pleaded case that on many previous occasions, such discrete inspection had taken place wherein no anomalies were found. 21. Rejoining his submission Shri. Talukdar, the learned counsel for the petitioners submits that if the 2nd inspection report did not have any bearing, the same ought not to have been mentioned in the Show-Cause Notice. However, once the same is mentioned, it forms the basis of the allegations and in absence of a copy of the report, grave prejudice is suffered by the petitioners as they are deprived of a reasonable opportunity to defend their case. As regards the primary objection regarding maintainability, the learned counsel for the petitioners submits that the respondent-corporation is a State within the meaning of Article 12 of the Constitution of India and is not a private employer, therefore, it is incumbent upon the respondent-corporation to act fairly, reasonably and as a model employer. As regards the primary objection regarding maintainability, the learned counsel for the petitioners submits that the respondent-corporation is a State within the meaning of Article 12 of the Constitution of India and is not a private employer, therefore, it is incumbent upon the respondent-corporation to act fairly, reasonably and as a model employer. It is also submitted that this Court being a Court of equity, substantial justice has to be done and therefore, even if the petitioners had not taken the ground of prejudice either in the reply to the Show-Cause Notice or in the Appeal, they should not be precluded from taking the ground of prejudice in the writ petition. He further submits that the said ground is a legal ground and there cannot be any restriction for taking up the said ground. 22. The learned counsel for the petitioners submits that shortage of delivery of 200 ml. Ltr of fuel in the volume of 5 ltrs. is intrinsically connected with the addition of 2nd gear and therefore, absence of official from the Metrology Department before determining such shortage will vitiate the entire proceeding. Making a categorical reply to the issue as to whether existence of double gear itself is a misconduct, the learned counsel submits that it is the end result namely, shortage of fuel which has to be taken into account by installation of such device and therefore, unless, such shortage was legally established, no fault can be attributed to the petitioners. Shri. Talukdar, the learned counsel submits that Metrology Act, 2009 was enacted by the Parliament as the item in question, namely, "weight and measures" is a List-I subject. Referring to the said Act and the requirement of an Officer of the Department at the time of search and seizure, it is submitted that such requirement has to be read into the guidelines holding the field as well as the agreement between the parties in absence of which the provisions of the Act would be rendered nugatory. 23. The rival contentions of the learned counsels have been duly considered and the materials before this Court have carefully examined. 24. Dealing with the primary objections on the maintainability of the writ petition and considering the nature of the dispute and the status of the parties especially that the respondents-corporation, which is a State owned Corporation, it cannot held that this writ petition is not maintainable. 24. Dealing with the primary objections on the maintainability of the writ petition and considering the nature of the dispute and the status of the parties especially that the respondents-corporation, which is a State owned Corporation, it cannot held that this writ petition is not maintainable. This Court is fortified by the fact that by the impugned action, the right to livelihood has been affected and therefore, the same can be the subject matter of adjudication by a Court exercising writ jurisdiction. 25. Coming to the merits of the dispute, it is seen that primary allegation of malpractice is of installing a second set of gears which do not find a categorical denial from the side of the petitioners. When installation of such gears itself constitute a grave mis-conduct, the 2nd inspection done to ascertain the method as to how the tampering could have been done may not have any bearing in either the decision or the decision making process. The petitioners have pleaded that after the 2nd inspection was done, no report of the same was furnished to the petitioners and it is only in the 2nd inspection which could deduct that there was anomaly/ shortage in the quantity of fuel and therefore, no misconduct could be deduced from the 1st inspection. The said stand of the petitioners is unable to be accepted by this Court in view of the fact that the installation of a 2nd set of gears in the device itself is a malpractice. As regards the grounds of violation of principles of natural justice, this Court is not inclined to accept the said contention of the petitioners for 2 (two) basic reasons:- (i) The 2nd inspection report dated 14.03.2012 was mentioned in the Show- Cause Notice and the allegation of tampering with the device is not dependent on the 2nd inspection report. Rather, this Court finds force in the submission made on behalf of the respondents-corporation that fairness has been maintained by mentioning about such inspection in the notice to show cause so as to give ample scope and opportunities to put forward the explanation which the petitioner had failed to do. Rather, this Court finds force in the submission made on behalf of the respondents-corporation that fairness has been maintained by mentioning about such inspection in the notice to show cause so as to give ample scope and opportunities to put forward the explanation which the petitioner had failed to do. (ii) When the report of the 2nd inspection was not even a basis of the principal allegation of installation of gears, it was not incumbent to furnish a report of the same and therefore, the allegations of violation of principles of natural justice cannot be countenanced. 26. The citation of HPCL (supra) may not be applicable in the instant case as the test detected in the case was connected to adulteration/ contamination of the fuel in which, absence of incumbent was held to be fatal. However, in the instance case, the malpractice is with regard to installation of double gear and admittedly, the Manager of the petitioners was present during such inspection. 27. This Court is also inclined to accept the submission of the corporation that by such malpractice, it is the petitioners alone who stands to gain and therefore, a presumption is available of involvement of the petitioners in the said malpractice. Though emphasis has been given on clause 8.5.6 of the guidelines, a careful reading of the guidelines would reveal that Show-Cause Notice has to be accompanied all reports and other documents which forms the basis of the notice. In the instant case, it is seen that it is the findings of the first inspection namely installation of a 2nd gear which is held to be a malpractice and not the mechanism/ mode as to how the same was installed. Therefore, it cannot be said that the 2nd inspection report was the basis of the Show-Cause Notice. In any case, a bare reading of the Show-Cause Notice makes it apparent that extracts of the 2nd inspection report have been quoted therein which, in the opinion of this Court would only establish fairness so as to give a reasonable opportunity to put forward their explanation. It appears that the 2nd inspection made on 14.03.2012 is only to find out the manner and mode of installation of the 2nd gear and it is not the basis of the allegations. 28. It appears that the 2nd inspection made on 14.03.2012 is only to find out the manner and mode of installation of the 2nd gear and it is not the basis of the allegations. 28. As regards the submission of requirement of the Personnel from the Legal Metrology Department, in the instant case, the basis of the allegation is not adulteration or short supply of the fuel but installation of 2nd set of gear itself which is itself a misconduct and for detecting such malpractice, the presence of such Personnel cannot be held to be mandatory. This Court is inclined to accept the submission of the Corporation that unlike a criminal proceeding under Section 100 of the Cr.P.C., the present offence is under the agreement dated 29.03.2008 binding the parties to the same. The said agreement does not contemplate the present of any such Personnel during inspection. By referring to the Show-Cause Notice, the learned Sr. Counsel submits that weight and measurement seals of the DU in question was not even tampered and therefore, the submission that there was a mandatory requirement of presence of a Personnel from the Metrology Department does not hold good. It is precisely for this reason, the 2nd inspection was done to find out the mechanism as to how the tampering could be done. 29. At this stage, the learned counsel for the petitioner submits that from the date of cancellation of the dealership, he has been suffering from immense hardship and inconvenience and his source of livelihood has been adversely affected and therefore, the corporation can reconsider the penalty imposed. Reacting to the same, the learned Sr. Counsel for the Corporation submits that cancellation of a dealership and appointment of a new dealer is itself an expensive process and it is out of compulsion that the corporation has taken the stand. It is the interest of the public in general which has propelled the Corporation to take the instant decision as otherwise a wrong signal may go the public. 30. In view of the aforesaid discussions, this Court is of the opinion that the petitioners have not been able to make out a case for interference and accordingly, the writ petition stands dismissed. 31. No order as to cost.