R.S.Filling Station Indian Oil ... vs Dispute Resolution Panel C/O ...
2022 Latest Caselaw 4680 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on: 23.05.2022
 
						       Delivered on: 31.05.2022                           
 
Court No. - 19
 
Case :- WRIT - C No. - 1262 of 2020
 
Petitioner :- R.S.Filling Station Indian Oil Corp. Ltd.Thr.Prop.Amit Singh
 
Respondent :- Dispute Resolution Panel C/O I.O.C Thr.Chairperson and Ors.
 
Counsel for Petitioner :- Tushar Hirwani,Amrendra Singh,Ashok Kumar Singh
 
Counsel for Respondent :- Manish Jauhari
 

 
Hon'ble Pankaj Bhatia,J.

1. The present petition has been filed challenging the order dated 15.10.2019 passed by Dispute Resolution Panel (in short "DRP") whereby the appellate forum had remanded the matter for adjudication before respondent no.4 as well as the order dated 19.10.2020 passed by respondent no.3 whereby the contract of the petitioner has been cancelled and his dealership also stands cancelled consequently.

2. This Court during the course of hearing had summoned the records of Writ - C No.21992 of 2020 for the purpose of perusal.

3. Heard Shri Prashant Chandra, learned Senior Advocate assisted by Ms. Radhika Singh, learned counsel appearing for the petitioner and Shri Dipak Seth, Shri Manish Jauhari and Ms. Shruti Sahu, learned counsel(s) appearing on behalf of respondent nos.1 to 4.

4. The facts, in brief, are that the petitioner was appointed as a retail outlet dealer by Indian Oil Corporation (for short ''corporation') by means of an appointment letter dated 02.12.2015 for running a retail outlet at Bariha Taranpur, District Lakhimpur Kheri, which was being run by the petitioner in the name and style of M/S R.S. Filling Station. An agreement was executed in between the parties on 01.04.2006. It is also common ground that the dealership granted to the petitioner is governed by the agreement executed in between the parties and the Marketing Discipline Guidelines (hereinafter referred as "MDG") issued from time to time. In the month of April, 2017 in pursuance to the directions given by the State Government, inspections were carried out by the authorities as specified in the Government Order across various petrol and diesel outlets and an inspection was also carried out on the petitioner's outlet on 31.05.2017 by a team of three persons. An inspection report was prepared, which is annexed as Annexure - 4 to the writ petition. It is also relevant to note that detailed instructions were issued by the Chief Secretary, State of U.P. vide communication dated 15.06.2017 constituting a team of 5 persons for carrying out the inspections. In the inspection report as prepared and contained in Annexure - 4, it was recorded that an inspection was carried out and the machines were checked. At the time of inspection, four dispensing units (8 nozzles) were found, out of which 6 nozzles were found in working conditions. From each nozzle, 15 ltrs. each of petrol and diesel were taken out and after inspection, the same were found to be giving proper delivery. 2 nozzles were found to be not in the working conditions. On inspection of pulsar cards of the nozzles, 2 pulsar cards appeared to be suspicious, which were seized and taken into custody and a plastic seal was fixed thereupon.

5. Based upon the inspection report dated 31.05.2017, the respondent - corporation issued a letter dated 31.05.2017 calling for the response from the petitioner. The said letter, which is contained in Annexure - 8, was termed as "fact finding letter". It was mentioned that during the inspection following observations were made and the petitioner was called upon to submit his explanation within a period of 15 days as to why action should not be taken as per the MDG/dealership agreement to protect the marketing interest of the corporation:

"2 Pulsar card were found with impression of tempering, due to which 3 Nozzles (2 MS AND 1 HSD) were affected by these 2 Pulsar card."

6. The petitioner submitted a reply on 15.06.2017 denying the allegations and submitted that no extra chips were found in the machines, the seals of machines were found intact, measurements checked were found in order and the calibration of the machines was done by the Weights and Measurement Officer and a certificate was issued by them, thus, no fault could be attributed to the petitioner. Subsequently, a show - cause notice was issued to the petitioner on 30.08.2018 (Annexure - 10). In the said show - cause notice, first charge alleged was that during the inspection following irregularities were found at the retail outlet:

"2 Pulsar card were found with impression of tempering, due to which 3 Nozzles (2 MS AND 1 HSD) were affected by these 2 Pulsar card."

A copy of the said inspection report was attached with the show - cause notice. It was also mentioned that the fact finding letter was issued to which the petitioner had replied. It was also noticed that in the reply of the petitioner he had requested not to take any action till the time test report of the pulsar card is received. It was also noticed that the District Supply Officer had suspended the diesel selling license of the petitioner. It was indicated in the said show - cause notice that MIDCO Company had released/sent a test report vide its letter dated 15.06.2018 with the following remarks:

"(I) R1 resistor is found missing on pulsar PCB.

(II) Additional Solder marks are observed on C8 capacitorlead.

(III) Additional solder marks are observed on L4 location of pulsar PCB."

A copy of the report was attached alongwith the show - cause notice. It was further recorded that after going through the reply dated 15.06.2017, the same appeared to the respondent to be not satisfactory/convincing and the attention of the petitioner was drawn to the Clause Nos. 16, 44, 58(m) and Clause No.5.1.4 of MDG2012 as amended, which attracts penal action under Clause 8.2 IV - Critical Irregularities: Termination of the first instance. Extract of the report submitted by the MIDCO is as under:

TEST REPORT

Received

Item No.1 - Midco SureFill Pulsar card for nozzle No.1

PCB Design Reference Number

Item No.1 - MID03323B201003

Tests/Parameter

Result

Remarks

Visual Inspection

Note:

Visual inspection has been done without providing Power to the received materials under test.

NOT OK

(Refer Remarks)

Item No.1

(I) R1 resistor is found missing on pulsar PCB.

(II) Additional Solder marks are observed on C8 capacitor lead.

(III) Additional Solder marks are observed on L4 location of pulsar PCB.

Delivery Test:

NOT TESTED

(Refer Remark)

Not tested due to non conformance to Midco design.

Result:

Pulsar card is not found in conformance with Midco standard design as per visual inspection test.

Note:

Tests have been carried out as per Midco norms only.

7. The second charge was that the irregularity has also been widely reported in the print and electronic media, which has caused prejudiced in the mind of the general public and the customers and as such has tarnished the good image and reputation of the corporation and the same was against the marketing interest of the corporation.

8. The petitioner was called upon to file his reply within a period of 15 days. It is stated that the petitioner submitted a detailed reply to the said show - cause notice on 05.10.2018, which is contained in Annexure - 13. It is also on record that in the intervening period, the license of the petitioner, which was cancelled by the State, was restored on 31.09.2017. It is on record that the 2 pulsar cards, which were taken into custody by the inspecting team on 31.05.2017 were handed over to the District Supply Officer, however, subsequently, the same were taken by the corporation from the District Supply Officer and one of the pulsar cards was handed over to the Original Equipment Manufacturer (OEM) MIDCO for testing on 15.12.2017 and the other card was handed over to the other OEM Dreser Wayne on 08.12.2017 for testing at NOIDA. The said two reports given by the two OEMs are on record as Annexures - 11 & 12.

9. The report of MIDCO has already been reproduced hereinabove. In the report of the other OEM Dreser Wayne, no signs of damage were found. The said report also observed that although soldiering signs impression have been observed in the pulsar PCB circuitry, however, during testing all operations were found normal. The petitioner in his defense relied upon the report of the Dreser Wayne also to impress that merely by eye estimation, it cannot be presumed that anything wrong was done, which stood confirmed by the OEM while recording that although impressions of soldiering were found on the pulsar PCB, however, during testing all operations were found normal. The report of the other OEM Dreser Wayne was submitted by the petitioner alongwith supplementary reply dated 27.11.2018.

10. It is on record that after the inspection, an FIR was also lodged against the petitioner under Section 3/7 of Essential Commodities Act, however, subsequently, a final report was submitted by the Investigating Officer on 26.12.2018, which was also accepted by the trial Court. It is on record that subsequent to the FIR coming to an end and the supply license being restored by the District Supply Officer on 13.09.2017, the sale of petrol etc., was supplied by the respondents and the operation continued from 01.07.2017 uninterrupted and the supply of HSD was resumed w.e.f 13.09.2017.

11. On 14.03.2019 the respondent - corporation passed an order terminating the retail outlet dealership of the petitioner. A copy of the said termination order is contained in Annexure - 19.

12. Aggrieved against the termination order dated 14.03.2019, the petitioner preferred a writ petition being Writ Petition No.9062 (MB) of 2019 (R.S. Filling Station v. Indian Oil Corporation & Ors.) before this Court wherein this Court granted an interim indulgence by staying the implementation of the termination order till the disposal of the application for interim relief by the appellate forum and the petitioner was relegated for filing an appeal before the Disputes Resolution Panel. The petitioner preferred an appeal challenging the termination order dated 14.03.2019. The said appeal was disposed off vide order dated 15.10.2019 whereby the appellate authority noticing the contention of the petitioner remanded the matter solely on the ground that the petitioner was denied an opportunity of hearing before passing of the order dated 14.03.2019 with a direction to proceed with the matter from the stage of granting of personal hearing as provided under Clause 8.6 of MDG. The order dated 14.03.2019 was set aside.

13. The said order of the appellate Court was challenged by the petitioner by filing a writ petition being Writ - C No.21992 of 2020, however, during the course of pendency of the said writ petition, a personal hearing letter was issued to the petitioner by respondent no.4 fixing 02.01.2020 for grant of personal hearing in terms of the remand order dated 15.10.2019. The petitioner vide his letter dated 27.12.2019 requested for an adjournment in view of the fact that petitioner could not contact his legal adviser on account of winter vacations, however, an order came to be passed on 19.10.2020 once again cancelling the dealership agreement of the petitioner. The said termination order was made subject to the final outcome of Writ Petition No.1262 (MS) of 2020, which was pending.

14. As the order was passed during the pendency of the writ petition, an amendment application was filed which was allowed permitting the petitioner to amend the writ petition and it is also noticeable that earlier Writ - C No.21992 of 2020 was withdrawn by the petitioner in view of the subsequent developments.

15. Learned counsel for the petitioner has placed heavy reliance on the judgment of this Court passed in Writ Petition No.27043 (MB) of 2018 (M/s Chaudhary Filling Point, Kazipur & Anr. v. State of U.P. & Ors.) to argue that in similar circumstances this Court had allowed the writ petition filed by a similarly placed dealer and the said order has attained finality. I shall revert to the same in the latter part of the judgment.

16. Learned counsel for the petitioner also places reliance on a certificate issued by Professor and Head of Electronics Department, National Institute of Technology, Karnataka, who has expressed his opinion that an ordinary laboratory will find it difficult to detect and prove the tampering, which requires specialized instruments and cannot be detected by a visual inspection alone.

17. In the backdrop of the facts as narrated hereinabove, Shri Prashant Chandra, learned Senior Advocate argues that the entire exercise initiated and which has resulted in cancellation of the dealership, was premeditated which is reflected from the show - cause notice and the fact finding letter issued, which clearly is a case of misreading of the report of the inspection team dated 31.05.2017. He further argues that any proceedings which are an outcome of a premeditated mind are clearly arbitrary and are liable to be quashed. He further argues that in inspection report dated 31.05.2017, it was observed that the seals in the dispensing unit were intact, delivery was correct and mere suspicion was noticed in the inspection report, which was clearly misinterpreted while issuing the fact finding letter as well as the show - cause notice wherein it was recorded that inspection team in respect of pulsar cards found an impression of tampering.

18. Learned Senior Advocate further argues that the report of MIDCO which was the basis for issuance of a show - cause notice is based upon visual inspection alone and does not record any conclusion with regard to any material, which can lead to a conclusion that there was any tampering done. He argues that the report of the MIDCO only recorded that "pulsar card is not found in conformance with Midco standard design as per visual inspection test.", which according to the petitioner is not enough to form an opinion that there was any tampering and as also opined by the Professor of NIT, Karnataka. He further argues that in the show - cause notice while levelling second charge it was mentioned that in view of matter being reported widely in the print and medical electronic image, a prejudice has been caused and the good reputation of the corporation is tarnished whereas no material in support of the said allegation contained in the show - cause notice either exists or was ever given to the petitioner. He further argues that the entire exercise was an arbitrary exercise of administrative powers conferred upon the respondent authority, which is subject to judicial review and cannot stand the test of Article 14 of the Constitution of India.

19. Learned Senior Advocate argues that the specific defense of the petitioner as taken in the two replies filed in response of the show - cause notice reliance was placed upon the other report sent by other OEM Dreser Wayne, which clearly demonstrated that there was nothing wrong with the pulsar card and that report ought to have been considered while passing the order only to ascertain that the petitioner was guilty of any malpractices or not. He further argues that the order impugned clearly reveals that no opportunity of hearing has been granted. He argues that the order calling upon the petitioner for personal hearing could not be adhered to in view of the prevalent Covid - 19 Pandemic situation and as such, the directions given by DRP for grant of personal hearing have not been complied with. He further argues that even if the personal hearing was not granted, it was incumbent upon the authority to have considered the replies submitted by the petitioner before forming an opinion leading to termination of the dealership. He again draws my attention to the impugned termination order wherein the authority concerned recorded the findings as were passed in the earlier order dated 08.10.2018, thereafter it records the directions given by the DRP and thereafter it records that despite various opportunities, the opportunity of personal hearing has not been availed by the petitioner, as such, the same was closed. While taking a decision it merely mentions that "in the absence of any new fact, it is concluded that "you have failed to discharge your responsibility as custodian of the outfits and to ensure that no acts are committed by you or your servants or agents, which is prejudicial to the interests or good name of the corporation or its product and in view of large scale reporting in media, the image of the corporation is tarnished", and thus, proceeded to terminate the retail outlet dealership in consonance with Clause 16, 44, 58(m) of the dealership agreement dated 01.04.2006 and clause no.5.1.4 of MDG-2012 as amended and Clause 8.2 IV of the said MDG. This manner of decision making, according to the counsel for the petitioner, is an arbitrary exercise of powers as the appellate order had clearly quashed the earlier termination order dated 14.03.2019 and thus, it is incumbent to have recorded fresh findings taking into consideration the written submissions made by the petitioner.

20. Learned Senior Advocate argues that if the petitioner was granted an effective personal hearing, the petitioner could have demonstrated that in view of the report of the other OEM Dreser Wayne and the opinion of the Professor of NIT, Karnataka, the report of MIDCO could be shown to be no report at all warranting such a severe action. In the light of the said, he argues that the writ petition be allowed.

21. Shri Dipak Seth, learned counsel for the respondent argues that the petition is not maintainable in view of the alternative remedy of appeal, which is provided for in the MDG guideline. He further argues that despite granting ample opportunities, the petitioner failed to avail an opportunity of personal hearing and thus, cannot find fault with the process of decision. He argues that the show - cause notice as issued to the petitioner was not premeditated as the corporation has no bias against the petitioner. In any case, there is no material to argue that there was any personal or institutional bias. He further justifies the order in terms of the MDG, especially Clause 5.1.4, the following is provided:

"5.1.4 ADDITIONAL / UNAUTHORISED FITTINGS / GEARS FOUND IN DISPENSING UNITS /TAMPERING WITH DISPENSING UNIT

Any mechanism / fittings / gear found fitted in the dispensing unit which is likely to manipulate the delivery.

Addition, Removal, replacement or manipulation of any part of the Dispensing Unit including any mechanism, gear, microprocessor chip / electronic parts/ OEM software will be deemed as tampering of the dispensing unit.

In such cases, views and independent opinion of the original equipment manufacturer would be obtained and suitable decision taken.

In case of this irregularity, sales from the concerned dispensing unit to be suspended, DU sealed. Samples to be drawn of all the products and sent to lab for testing."

22. Learned counsel for the respondent further argues that the irregularities as classified under MDG are classified as ''critical irregularities' and in terms of Clause - 8.2 (iv), the allegation against the petitioner would fall as ''critical irregularity', consequence whereof is provided under MDG itself. He further argues from the report of MIDCO, that perusal of the report itself clearly reveals that the same would fall within mischief of Clause 5.1.4 and thus, no wrong has been committed by the corporation. In the light of the said, he argues that the writ petition is liable to be dismissed.

23. Shri Dipak Seth, counsel for the respondent, was confronted with the specific query of this Court as to whether any material was given to the petitioner in support of the second allegation that in view of large scale media reporting, the image of the company tarnished to which he fairly submits that no such material was given to the petitioner nor is it contained in the show cause notice.

24. Shri Prashant Chandra, learned Senior Advocate in rejoinder argues that the alternative remedy would not be an efficacious one in view of the fact that the writ petition is already pending and the termination order has been made subject to the outcome of the writ petition. Furthermore, relegating the petitioner to the alternative remedy would violate the rights of the petitioner under Article 21 of the Constitution of India and further as the retail outlet was admittedly running from 2017, relegating the petitioner to the alternative remedy would cause undue hardship to the petitioner as the retail outlet of the petitioner would not start during the pendency of the appellate proceedings and lastly he argues that any order, which is passed contrary to the principles of natural justice, ex-facie, perverse and based upon no material should not be relegated to the alternative remedy and the writ petition would lie in terms of the judgment of the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trademarks, Mumbai & Ors. - (1998) 8 SCC 1.

25. Learned counsel for the petitioner has relied upon the following judgments:

"1. Maharashtra Chess Association v. Union of India - 2019 SCC OnLine SC 932

2. J. Ashoka v. University of Agricultural Sciences - (2017) 2 SCC 609

3. Ahmad Ullah v. Union of India & Ors. - Writ C No.25502 of 2019 decided on 13.09.2019

4. Allahabad Bank and Ors. v. Krishna Narayan Tewari - (2017) 2 SCC 308

5. Rakesh Kumar Pandey v. State of U.P. & Ors. - 2019 SCC Online All 4004

6. Gour Chandra Dutta v. Union of India and Ors. - 2015 SCC OnLine Bom 4883

7. Siemens Ltd. v. State of Maharshtra & Ors. - (2006) 12 SCC 33

8. M/s. Laltu Fillings Station v. Union of India & Ors. - 2016 SCC OnLine Cal 626

9. Oryx Fisheries Private Limited v. Union of India and Ors. - (2010) 13 SCC 427"

26. The said judgments referred to above were to canvass the point that alternative remedy is not an absolute bar, the administrative/quasi-judicial authorities are obliged to record reasons and that show - cause notice issued with a premeditation would entitle the petitioner to approach this Court in exercise of power under Article 226 of the Constitution of India.

27. Learned counsel for the respondent on the other hand relies upon a judgment of this Court in the case of Savitri Devi and Ors. v. Union of India and Ors. - Writ C No.29859 of 2017 decided on 13.07.2017.

28. In the light of the argument raised at the bar and the pleadings exchanged, this Court is to decide: (i) whether the writ petition would lie before this Court bypassing an appellate remedy provided under the MDG? and;

(ii) whether the action of the respondent in terminating the retail outlet by the petitioner was justified or not?

29. It is undisputed and on record that the basis for passing of the order terminating the dealership was the report dated 31.05.2017 wherein a suspicion was expressed with regard to two pulsar cards, the report of OEM MIDCO and the third allegation with regard to loss of reputation of the corporation in view of wide reporting in print and electronic media.

30. Although a remedy of appeal lies, however, the fact remains that during the period 13.09.2017 till the passing of the termination order dated 19.10.2020, the petitioner was continuing to operate the retail outlet and no fault was found during the said period and the manner of passing the order, which shall be dealt with while deciding the second issue, I have no hesitation in holding that the writ petition would lie against an order, which is perverse and which cannot satisfy the test of Article 14 of the Constitution of India.

31. Referring to the second question, what emanates from the facts is that an inspection was carried out on 31.05.2017 wherein it was expressed that two pulsar cards appeared to be suspicious, the corporation clearly misreading the said inspection report prima - facie formed an opinion that the two pulsar cards were found with impression of tampering. In terms of the inspection report dated 31.05.2017, clearly the said impression formed by the corporation on the reading of the report of the inspection team was a clear misreading and misunderstanding of what was expressed by the inspection team. In the fact finding letter and the subsequent show - cause notice after receiving of the report of MIDCO was the only material available for passing of the order terminating the dealership. The report of the MIDCO on its plain reading did not specifically conclude that there was any tampering or had contained anything to demonstrate that the discrepancies as observed by MIDCO from their ocular inspection could be attributed to the petitioner.

32. It is common ground and not disputed that all the seals were found intact, the quantity of the product dispensed by the dispensing unit were found to be alright. Mere presence of soldiering marks over the pulsar cards, which was the basis of the passing of the order does not make it clear as to how the said discrepancy observed could be attributed to the petitioner, more so, in the light of the report of the OEM Dreser Wayne, which was also given the similar pulsar cards with similar discrepancies, however, after testing, they found that there was nothing wrong with the operations which were effected through the pulsar cards despite their being soldiering marks on them.

33. A very vital piece of evidence given by the petitioner being the report of the Professor of NIT was not even considered. There is further nothing on record to demonstrate as to whether MIDCO had any facility for testing or they were qualified to carry out the testing. That being the case, the entire order is based upon misreading of the inspection report and the report of the MIDCO, which cannot be termed as conclusive so as to establish anything which can be attributed to the petitioner. This aspect was elaborately considered by this Court while delivering the judgment in the case of M/s Chaudhary Filling Point (supra) while dealing with the contentions pertaining to irregularities in the pulsar card, which was almost similar to the allegations contained against the petitioner. It is relevant to quote the relevant extracts from the case of M/s Chaudhary Filling Point (supra), which are as under:

"............

As seen from the reading of the impugned order, the only reason assigned for being not satisfied with the explanation offered by the petitioner was that there was tampering in the DU and pulsar card contains certain soldering marks. However, what was not considered by the competent authority was that at what point of time this unauthorized tampering/soldering was done in the dispensing unit and how the dealer is manipulating the distribution of fuel. No material, much less credible one has been brought on record by the respondents to disclose the unauthorized access to the equipment by the petitioner. It was specific stand of the petitioner that periodically the Weights and Measurements Department officials inspected the seals and they were found to be intact. Further more, what is the impact on tampering/soldering in delivery unit is not disclosed. How the dealer can manipulate delivery of fuel by inserting such unit is not explained. The only objective of a dealer to tamper with dispensing unit is to manipulate delivery of fuel. In this case, the delivery of fuel was found to be accurate prior to checking of unit and after the checking. Furthermore, the defence of the petitioner that it is possible that the supplier himself might have done soldering while repairing for proper functioning of the unit by supplier himself cannot be brushed aside.

In view of the above, merely on assumptions that the tampering/soldering was found in the delivery unit of the dealer premises, the petitioner dealer cannot be visited with severe consequence of termination of dealership and that too when the OEM report does not support or corroborate the version of the respondents. Thus, the action of the respondent-Corporation, in the facts of this case, in terminating the dealership of the petitioner no.1 on the sole ground that soldering/tampering was found in the Dispensing Units is illegal, unreasonable, excessive and made in arbitrary exercise of power and hence unsustainable, more particularly when performance of the petitioner-dealer all along has been appreciated."

34. The submission of Shri Dipak Seth that soldering marks over the pulsar card would be deemed to be tampering in view of Part II of Clause 5.1.4. of the MDG does not merit acceptance for the following reasons:

"5.1.4 ADDITIONAL / UNAUTHORISED FITTINGS / GEARS FOUND IN DISPENSING UNITS /TAMPERING WITH DISPENSING UNIT

Any mechanism / fittings / gear found fitted in the dispensing unit which is likely to manipulate the delivery.

Addition, Removal, replacement or manipulation of any part of the Dispensing Unit including any mechanism, gear, microprocessor chip / electronic parts/ OEM software will be deemed as tampering of the dispensing unit.

In such cases, views and independent opinion of the original equipment manufacturer would be obtained and suitable decision taken.

In case of this irregularity, sales from the concerned dispensing unit to be suspended, DU sealed. Samples to be drawn of all the products and sent to lab for testing."

On a plain reading, Clause 5.1.4 as quoted above deals with the effect of manipulation/modification of the machinery, the said clause has to be read as a whole and cannot be read in parts as argued by Shri Dipak Seth. On its composite reading, it is clear that any addition, removal, replacement or any manipulation of any part of the dispensing unit should be read with Part 1 and necessarily has to correlate with the manipulation of delivery.

To further clarify, the words ''addition', ''removal', ''replacement' or ''manipulation' have to be interpreted to be the acts which are done by any person by a conscious act with an intent to manipulate delivery to gain unfair advantage. The deeming fiction can be applied only when it can be concluded that the addition or manipulation has been done with a view to gain any unfair advantage. It is also inconceivable that any dealer would do any manipulation with no consequential gains or benefits. The report of ''MIDCO' is silent on this aspect as also the inspection report dated 31.05.2017 and that of OEM Dreser Wayne suggests otherwise. Thus, no material on record exists so as to attract the deeming fiction of clause 5.1.4. of MDG.

35. The judgment of this Court in the case of Savitri Devi (supra) as cited by Shri Dipak Seth did refer to Clause 5.1.4. of the MDG, however, the Court did not interfere for the simple reason that in the said case there was a specific allegation of tampering and also allegation of compromise with the quality and quantity of the petroleum products. The said case also recorded that in the said case, the petitioners did not deny tampering of the dispensing unit in their reply and furthermore on the examination, two external yellow wires were found. These facts are clearly absent in the present case, thus, the said judgment would have no applicability to the facts of the present case.

36. The second allegation levelled against the petitioner with regard to tarnishing of the image of the corporation in view of the large scale reporting, it is an admitted ground that no material existed either before the authority or was confronted to the petitioner to enable the authority to come to a conclusion that the image of the corporation was tarnished and the same could be attributed to the petitioner.

37. It is well settled law that in the administrative and the quasi-judicial decision making process, any decision taken upon misreading of a document, in ignorance of a document and without recording reasons would clearly qualified as arbitrary, perverse and hit by wednesbury arbitrariness. The order impugned, which has been passed merely records the earlier order, the directions given by the appellate forum and the absence of the petitioner for personal hearing and abruptly records that "it is concluded that the petitioner had failed to discharge its responsibilities as custodian of the outfits" clearly there is no application of mind by the authority concerned, the defense as taken by the petitioner in his reply and the supplementary reply have not even been referred to, although the same were also canvassed when the first order of termination was passed and as recorded in the order dated 19.10.2020.

38. The denial of opportunity of hearing also makes the order as violative of principles of natural justice. Although the order records that despite opportunity, the petitioner did not avail the opportunity of hearing, however, the fact remains that during the period from which the dates were fixed for hearing, Covid - 19 Pandemic was prevalent in the country and no reason has been shown as to why the corporation acted in hot haste and closed the right of hearing of the petitioner. Thus, following the judgment of this Court in the case of M/s Chaudhary Filling Point (supra) and observing that the impugned order has been passed on a clear misreading of the inspection report, a clear misreading of the report of MIDCO, non-consideration of vital piece of evidence in the form of report of the other OEM Dreser Wayne as well as the report of the Professor of NIT and improper invocation of deeming provision under clause 5.1.4 of MDG, the impugned order dated 19.10.2020 (Annexure RA - 8) cannot be sustained and is set aside with directions to the respondent - corporation to permit the petitioner to run the retail outlet forthwith subject to the petitioner complying with the other requirements for dispensing the petroleum products as are required under the Act and the Rules.

39. The writ petition stands allowed in terms of the aforesaid directions.

Order Date :- 31.05.2022				(Pankaj Bhatia, J.)
 
nishant