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2020 DIGILAW 162 (AP)

Raja Gas Agencies v. Union of India

2020-02-26

K.VIJAYA LAKSHMI

body2020
ORDER : K. Vijaya Lakshmi, J. 1. This writ petition is filed questioning the show-cause notice dated 8.3.2018 issued by the 3rd respondent, as illegal and arbitrary. 2. The case of the petitioner is that, he entered into a Distributorship Agreement dated 3.11.2010 with the 3rd respondent pursuant to a notification and has been operating the LPG distributorship and after his selection, HPCL conducted Field Verification Credentials (FVC) to verify whether the documents submitted by the petitioner alongwith the application are genuine or not and satisfied itself that they are genuine. The 3rd respondent issued impugned show-cause notice dated 8.3.2018 alleging that the experience certificates submitted by the petitioner are false and that a complaint has been received from one G. Rajasekhar on 19.3.2012, and that the investigation revealed that the agency who gave experience certificate, denied to have issued such a certificate and that the petitioner has violated Clause 34(h) of the agreement and Clause 7 of Annexure-A submitted alongwith the application; petitioner submitted his explanation to the show-cause notice on 21.3.2018 to the 3rd respondent; the investigation said to have been conducted by HPCL is without any notice and hence, the same is illegal; as per selection guidelines, a complaint with regard to selection shall be entertained within a period of 30 days from the date of declaration of results as per Clause 21.1 of the Brochure for selection of LPG Distributorship and that in the present case, they have entertained the complaint after a lapse of four years from the date of declaration of results; the agency which gave experience certificate to the petitioner did not include the name of the petitioner in the Wages Register, as such the same is not reflected in the office of the Assistant Commissioner of Labour; though it was named as show-cause notice, it appears that the respondents have already concluded that the petitioner submitted false certificates. Hence, the writ petition. 3. When the writ petition came up for admission on 1.5.2018, an interim direction was granted directing that the enquiry may go on, but no orders shall be passed. 4. Hence, the writ petition. 3. When the writ petition came up for admission on 1.5.2018, an interim direction was granted directing that the enquiry may go on, but no orders shall be passed. 4. Counter-affidavit has been filed alongwith vacate stay petition on behalf of respondents 2 and 3 stating inter alia that in the application, petitioner has mentioned that he has two years of experience from 10.9.2003 to 4.10.2005 in direct sale/home delivered products, including LPG Distributorship and that in support thereof, petitioner has submitted experience certificate dated 29.10.2007 issued by M/s. Sri Luxmi Tulasi Gas Agency, Rajahmundry. As the Vigilance Department received a complaint on 19.3.2012, an enquiry was conducted and in the said enquiry, the proprietor of M/s. Sri Luxmi Tulasi Gas Agency denied to have issued such experience certificate; petitioner also submitted another experience certificate issued by the same agency without any date claiming to have worked with M/s. Sri Luxmi Tulasi Gas Agency for the period from 5.11.2003 to 8.5.2004; for selection of dealership for retail outlet at Antarvedi Village of East Godavari District, petitioner also submitted experience certificate dated 8.11.2005 issued by M/s. Savitri Petro Filling Station, Ravulapalem stating that he worked as Manager from 9.9.2002 to 8.11.2005; M/s. Savitri Petro Filling Station, Ravulapalem vide letter dated 4.9.2013 stated that the petitioner never worked in its retail outlet and that the certificate was not issued by them; however, selection process at Antarvedi did not materialize; as the three experience certificates said to have been issued in the name of the petitioner were denied by the respective agencies, impugned notice was issued to the petitioner; according to Clause 4.5(d) of guidelines for selection of LPG Distributors, if any person is allotted the distributorship by giving wrong information, it will be cancelled; according to Clause 23, if any information furnished by the applicant is found to be false at any point of time before or after appointment as dealer, the allotment will be cancelled forthwith and distributorship will be terminated in case it is commissioned; Clause 34(h) also gives a right to the Corporation to terminate the dealership agreement in case the dealer has concealed any information; hence, even if the complaint is beyond the period of 30 days, respondents have right to take appropriate action and that in fact petitioner also gave an affidavit in Annexure-A stating that if the information given by the petitioner is found to be false, the Corporation has got right to terminate the distributorship. It is further stated that the enquiry has been completed and final orders are yet to be passed and sought to vacate the interim order. 5. The 4th respondent was impleaded as per orders in IA No. 1 of 2019 dated 13.11.2019. It is further stated that the enquiry has been completed and final orders are yet to be passed and sought to vacate the interim order. 5. The 4th respondent was impleaded as per orders in IA No. 1 of 2019 dated 13.11.2019. He filed IA No. 2 of 2019 seeking to vacate the interim stay, stating inter alia that the 4th respondent also applied for LPG dealership alongwith the writ petitioner pursuant to the notification; as per Rule 16 of the Manual published by the HPCL, it contains the procedure/guidelines for selection of LPG Distributors and field verification of the certificates produced by the candidates is a must and the said rule requires that the letter of intent will be issued to the next eligible candidate provided no complaint is pending against him; he sent a fax message dated 29.10.2008 requesting the 2nd respondent to conduct enquiry into the fake certificate submitted by the writ petitioner and without taking any action, letter of intent was issued in favour of the writ petitioner on 23.10.2009; he also sent another fax message dated 13.11.2009 to the 1st respondent; another letter was also faxed to the 3rd respondent on the said date to conduct enquiry; the total marks awarded to the writ petitioner are 27.67 and the marks awarded to the 4th respondent are 27.33; had the Corporation enquired properly, the marks of the writ petitioner would be 23.67 by excluding the marks for experience; there is no denial of receipt of the complaint by the Corporation in their replies and in the reply given by the Corporation dated 25.2.2013, it was stated that the 4th respondent did not present the complaint within one month from the date of selection, which is actually incorrect, as two complaints were made before the selection and the third one is made within one month; Mr. B. Ramesh, Territory Manager (LPG) in his letter dated 10.11.2014 informed that nobody worked as Manager since commissioning of LPG Distributor at M/s. Sri Luxmi Tulasi Agency, upto 31.8.2013 and someone else is working there since 1.9.2013; the Assistant Commissioner of Labour, Rajahmundry in his letter dated 3.4.2014 confirmed that the writ petitioner never worked in M/s. Luxmi Tulasi Gas Agency, Rajahmundry; he also secured copy of the service certificate produced by the writ petitioner while applying for dealership at Antarvedi, which was issued by Savitri Petro Filling Station, Ravulapalem on 8.11.2005 in which it is certified that the writ petitioner worked there as Manager from 9.9.2002 to 8.11.2005; a perusal of both the certificates clearly reveal that they dovetail with each other except for slight changes in the dates; the Assistant Labour Officer, Kothapeta in his letter dated 23.4.2012 confirmed that the writ petitioner never worked in Savitri Petro Filling Station, Ravulapalem; as per the guidelines, 15 marks are to be awarded for professional degree and only 10 marks are to be awarded for degree; the writ petitioner annexed BAL Certificate, which is equivalent to degree and not professional course, but the selection committee has awarded 15 marks to the writ petitioner when he is entitled to only 10 marks; the educational qualification of the writ petitioner was deliberately shown as 'BL' instead of 'BAL' to justify the award of 15 marks instead of 10 marks; as per Rule 22.4.2 of the Manual in case of complaint against empanelled candidate, action will be taken for appointment of the next candidate in the merit panel. 6. Writ petitioner filed reply-affidavit stating inter alia that the copy of the complaint dated 19.3.2012 which is submitted by the 4th respondent is not filed alongwith the counter-affidavit; copy of the enquiry report is also not annexed to the counter-affidavit and the same is not supplied to the petitioner; enquiry is not conducted in the presence of the petitioner and that the counter-affidavit of respondents 2 and 3, does not speak about the field verification that is already made. 7. Sri M. Ravindranath Reddy, learned Standing Counsel appearing for the Corporation also filed copy of the affidavit submitted by the petitioner stating that if any declaration made by the petitioner is found to be false and untrue, the Corporation will have a right to withdraw the letter of intent or terminate the dealership. 8. 7. Sri M. Ravindranath Reddy, learned Standing Counsel appearing for the Corporation also filed copy of the affidavit submitted by the petitioner stating that if any declaration made by the petitioner is found to be false and untrue, the Corporation will have a right to withdraw the letter of intent or terminate the dealership. 8. Heard Sri P. Veera Reddy, learned Senior Counsel and Sri T. Rajanikanth Reddy, appearing on behalf of the petitioner, Sri M. Ravindranath Reddy, learned Standing Counsel on behalf of respondents 2 and 3 and Sri S. Subba Reddy, learned Counsel appearing for the unofficial respondent No. 4. 9. Sri P. Veera Reddy, learned Senior Counsel, appearing for the petitioner submits that as per Clause 14 of the guidelines for selection of Indane Distributors, 2007, the LPG distributor will be selected on the basis of various criteria and so far as the parameter 14(e) is concerned, only four marks will be awarded for experience and for evaluation on the parameter 'e', the same will be done based on the interview and that the Corporation has evaluated the petitioner basing on the interview and selected him. He further submits that as per Clause 14.2, marks will be awarded on the quality rather than the amount of experience and that according to Clause 17, merit panel will be valid for a period of one year from the date of commissioning of the distributorship and if within this period, the distributorship is withdrawn for any reason, oil company will have the option of awarding distributorship to the next candidate in the merit panel after necessary field verification and as the merit panel lapsed in the present case, the distributorship cannot be given to any other person. He also relies upon Clause 21.1 of the said guidelines and submits that a complaint will be entertained only if it is received within one month from the date of declaration of results and that in the present case, the said complaint is not made within one month from the date of declaration of results. He further submits that the complaint of the 4th respondent dated 11.2.2013 refers to a proceeding dated 11.12.2012, but the same is not filed. He further submits that the complaint of the 4th respondent dated 11.2.2013 refers to a proceeding dated 11.12.2012, but the same is not filed. Vide letter of the Corporation dated 25.2.2013, the Corporation rejected the request of the 4th respondent on the ground that the experience certificate produced by the petitioner was found to be genuine at that relevant point of time. He submits that having rejected the complaint once again show-cause notice cannot be issued and that the counter-affidavit does not speak about the earlier rejection. He also relied upon the decisions in Sajeesh Babu, K. v. N.K. Santhosh and others, (2012) 12 SCC 106 ; Union of India v. K.D. Pandey, (2004) 2 SCC 471 and Union of India v. G. Ganayutham, (1997) 7 SCC 463 . 10. Sri M. Ravindranath Reddy, learned Standing Counsel for respondents 2 and 3 submits that the writ petition is not maintainable against show-cause notice and that in the application filed by the petitioner, he stated that he has got two years of experience, but there is difference of dates in the experience certificates. He mainly relies upon Clause 4.5 of the guidelines for selection of Indane Distributors, wherein disqualifications are specified. Basing on Clause 4.5(d) he submits that irrespective of time limit, the distributorship can be cancelled if wrong information is given. He also relies upon Clause 23 of the guidelines according to which, if any information which is furnished is found to be false, at any point of time before or after appointment, as a dealer, the allotment will be cancelled forthwith and distributorship will be terminated in case commissioned. He further submits that the first certificate filed by the petitioner is dated 8.11.2005, which is given by M/s. Savitri Petro Filling Station, Ravulapalem, stating that the petitioner worked in their outlet as a Manager from 9.9.2002 to 8.11.2005; the certificate given by Sri Luxmi Tulasi Gas Agency, Rajahmundry shows that the petitioner worked from 10.9.2003 to 4.10.2005 and another certificate which is given to the petitioner by the same agency, which contains no date, shows that the petitioner worked as Manager from 5.11.2003 to 8.5.2005 and that there is contradiction of the dates in the certificates. He further contends that the petitioner ought not to have worked at two Petro Stations at the same time, one at Ravulapalem and another at Rajahmundry. He further contends that the petitioner ought not to have worked at two Petro Stations at the same time, one at Ravulapalem and another at Rajahmundry. He also relies upon the letter given by Savitri Petro Filling Station dated 4.9.2013 stating that the petitioner never worked in their outlet and that the said certificate was not signed by them. 11. Sri S. Subba Reddy, learned Counsel appearing for the 4th respondent submits that there is discrepancy of the dates mentioned in the experience certificates produced by the petitioner, which is obvious on the face of the said certificates and the said certificates pertaining to two different areas. He also submits that the letter dated 25.2.2013 is not a letter rejecting the request of the 4th respondent. But the said letter gives only certain information to the 4th respondent and that in the last para, they have categorically stated that the Corporation is at liberty to take appropriate action at any time in terms of Clause No. 23 of the dealership selection guidelines or initiate enquiry against the distributor. He relies upon the decision of the Hon'ble Supreme Court in Special Director v. Mohd. Ghulam Ghouse, (2004) 3 SCC 440 , wherein it was held that the High Courts should not ordinarily entertain the writ petitions, which are filed questioning the legality of the show-cause notices. 12. The issue in the present case revolves around (i) whether the certificates produced by the petitioner in the present case are genuine or not; (ii) whether the complaint made by the 4th respondent can be acted upon, according to the guidelines and the time limit stipulated therein and (iii) whether the writ petition can be entertained against show-cause notice in the light of the facts discussed above? 13. As seen from the experience certificates, which are filed alongwith the vacate stay petition filed by the Corporation, at the time of applying for dealership, the first certificate said to have given by M/s. Sri Luxmi Tulasi Gas Agency is dated 29.10.2007, which shows that the petitioner has worked in their outlet from 10.9.2003 to 4.10.2005 and the second certificate is also given by the same agency, which has no date and shows that the petitioner worked from 5.11.2003 to 8.5.2005. Another certificate produced by the petitioner is said to have given by M/s. Savitri Petro Filling Station, Ravulapalem, dated 8.11.2005, which shows that the petitioner has worked in their outlet from 9.9.2002 to 8.11.2005. As seen from the dates, which are mentioned therein, there is contradiction with regard to the period for which the petitioner worked in the said Gas Agency and the two certificates issued by Sri Luxmi Tulasi Gas Agency pertain to Rajahmundry and the another certificate issued by Savitri Petro Filling Station pertains to Ravulapalem. 14. Petitioner claims to have worked in the above agencies for the period shown therein. The contradiction with regard to these certificates, according to the petitioner is that, the above two agencies did not intimate the name of the petitioner to the Labour Department for obvious reasons and hence, they are denying that the petitioner has worked with them. Assuming for a moment that the said certificates, were in fact, given by the said petro station and the gas agency, there is difference between the dates given by Savitri Petro Filling Station, Ravulapalem and Sri Luxmi Tulasi Gas Agency, Rajahmundry. Case of the petitioner is that the distance between two stations is about 20 Kms and that he worked in both the stations. Apart from this, a letter is, in fact, given by Savitri Petro Filling Station dated 4.9.2013 stating that they did not issue the said certificate. Whether they are genuine or false are disputed questions of fact, which cannot be gone into in a writ petition. 15. With regard to the issue, whether action can be initiated against the petitioner, even if the complaint is received after one month from the date of declaration of results, as specified in Clause 21 of the guidelines for selection of Indane Distributors, which are applicable to all distribution companies, Clause 4.5(d) states that distributorship can be cancelled if a person is allotted the same by giving wrong information. No time limit whatsoever is mentioned in Clause 4.5 of the said guidelines. Apart from that, Clause 23 of the guidelines shows that if any information furnished by the applicant is found to be false at any point of time before or after appointment as a dealer, the allotment will be cancelled forthwith. In view of the said clauses, irrespective of the time limit, action can be initiated against dealer even after appointment. Apart from that, Clause 23 of the guidelines shows that if any information furnished by the applicant is found to be false at any point of time before or after appointment as a dealer, the allotment will be cancelled forthwith. In view of the said clauses, irrespective of the time limit, action can be initiated against dealer even after appointment. Even according to Clause 34(h) of the dealership agreement, the dealership can be terminated, if the dealer has concealed any information and if any information given by the dealer in the application for appointment as a dealer or in any document supplied therewith or filed in support thereof is found to be false, untrue or incorrect. Hence, I am of the opinion that the complaint can be enquired into. 16. Learned Senior Counsel appearing for the petitioner relied upon the decision in G. Ganayutham's case (supra). The principle laid down in the said case is that the Court would not interfere with the administrator's decision unless it is illegal or suffered from procedural impropriety or is irrational. But the present writ petition is filed challenging the show-cause notice and hence, the said decision will not help the petitioner. 17. He also relied upon the letter dated 25.2.2013, which relies upon Clause 12.1 of the advertisement, according to which, a representation/complaint shall be entertained only if it is received by the office concerned within one month from the date of declaration of the results, but in the light of the discussion with regard to other clauses complaint can be entertained, even after one month. 18. It is also contended that in the letter dated 25.2.2013, it is stated that the certificates were found to be genuine and hence, action cannot be initiated now. He also relied upon the decision in K.D. Pandey's case (supra), in support of his contention that second enquiry cannot be done. As seen from the pleadings and documents, no enquiry was held previously and only a reply was given to the complaint. It is relevant to note that in the said letter dated 25.2.2013, it is also categorically observed that the Corporation is at liberty to take appropriate action at any point of time in terms of Clause 23 and hence, irrespective of the complaint, Corporation is at liberty to take appropriate action in accordance with Clauses 23 and 4.5. It is relevant to note that in the said letter dated 25.2.2013, it is also categorically observed that the Corporation is at liberty to take appropriate action at any point of time in terms of Clause 23 and hence, irrespective of the complaint, Corporation is at liberty to take appropriate action in accordance with Clauses 23 and 4.5. Apart from that the certificate, which is issued by Savitri Petro Filling Station is dated 4.9.2013, which is subsequent to the letter dated 26.2.2013 and in the light of the letter of Savitri Petro Filling Station dated 4.9.2013, the Corporation can enquire into the matter and the judgment in K.D. Pandey's case (supra), does not apply to the case on hand. In view of the facts discussed above this cannot be termed as a second enquiry. 19. In Sajeesh Babu's case (supra), relied upon by the learned Counsel for the petitioner, it was held that in a matter of appointment/selection by an Expert Committee/Board, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts. Even in the said case, the genuineness of the experience certificate was questioned. A Single Judge of the Kerala High Court held that experience certificate appeared to be unacceptable and quashed the grant of licence of LPG distributorship to the appellant therein and directed the Corporation to assess his marks afresh excluding the marks for experience certificate. The Division Bench of the Kerala High Court upheld the same. Upon which, the Hon'ble Supreme Court held that in the absence of any allegation as to mala fide action on the part of the selectors, interference by the High Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India is not warranted. It was further held that the Courts should be slow to interfere with the opinions expressed by the experts. In the said case, in order to ascertain the genuineness of the contents of experience certificates, the Corporation deputed responsible persons for verification and, in fact, they met the issuing authority and were satisfied with the correctness of their statement and in those circumstances, the Hon'ble Supreme Court held that the learned Single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee. But in the present case, the stand of the Corporation is that the said service certificates are not genuine and that they would like to verify the same. In view of the same, the said judgment does not apply to the facts of the case on hand. 20. The contention of the learned Senior Counsel that the experience of the candidate is assessed based on the interview and that petitioner was accordingly selected cannot be accepted because the petitioner enclosed experience certificates to show his experience and for award of four marks. 21. The contention of the learned Senior Counsel appearing for the petitioner is that the petitioner was not given copy of the complaint and the letters relied upon by them and that the impugned show-cause notice does not show that the petitioner has violated Clause 34(h) of the agreement. As many disputed questions of law are involved, such as the authority of the person who issued show-cause notice is not challenged, as no mala fides are attributed against a person who issued show-cause notice, and as the writ petition itself is against a show-cause notice, I deem it appropriate not to entertain the writ petition. Even though, it is stated in the counter-affidavit that the enquiry is completed, in the facts and circumstances of the case, the Corporation is directed to supply the copies of the documents that are being relied upon by the Corporation before issuance of the show-cause notice and conduct fresh enquiry after giving opportunity to the petitioner and the 4th respondent and pass appropriate orders in accordance with law, as expeditiously as possible. It is needless to observe that petitioner shall cooperate for early disposal of the enquiry. 22. The writ petition is, accordingly, disposed of. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this writ petition, shall stand closed.