Andhra Pradesh High Court - Amravati
M/S Eshwar Sai Filling Station vs The Chief Divisional Retail Sales ... on 14 February, 2023
Bench: Ravi Nath Tilhari
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.1704 OF 2023
JUDGMENT:-
1. Heard Sri B. Chinnapa Reddy, learned counsel for the
petitioner and Sri S.V.S.S. Sivaram, learned standing counsel
for the respondents 1 and 2.
2. This writ petition under Article 226 of the Constitution of
India has been filed for the following relief:
"Hon'ble Court may be pleased to issue a Writ order or
direction more particularly one in the nature of Writ of
Mandamus declaring the termination proceeding bearing ref.
no. VJADO/MDG/Eswar Sai/185250 dated 23.12.2022 of
Executive Director and State Head of TAPSO of the 2nd
respondent corporation in violation of the principles of natural
justice and in violation of the fundamental right to life
including right to lead dignified life by a physically
handicapped person and further in violation of the MDG
guidelines 2012 as illegal arbitrary and unconstitutional and
in violation of principles of natural justice".
3. The petitioner is challenging the proceeding dated
23.02.2022 of the Executive Director & State Head, Telangana &
Andhra Pradesh State Office, in short ED & State Head, TAPSO
of the 2nd respondent-M/s. Indian Oil Corporation Limited,
respondent No.1, by which the petitioner's retail outlet has been
cancelled.
4. Sri S.V.S.S. Sivaram, raises preliminary objection against
maintainability of the writ petition on the ground that the
petitioner has an alternative remedy, to file appeal before the
appellate authority under Paragraph 8.9 of the Marketing
Disciplinary Guidelines, in short the Guidelines.
5. Paragraph 8.9 of the Guidelines provides as under:-
"8.9 Appellate proceedings:
1. In case of termination arising out of invocation of
MDG, the dealer will have the right to appeal within a period of
30 days from the date of receipt of order, before the Appellate
Authority, through the concerned Divisional/Territory/Regional
office of the Oil Marketing Company (OMC). The Appellate
Authority is empowered to decide the matter and the appeal
shall be disposed of preferably within 90 days from the date of
filing the appeal in the Divisional/Territory/Regional office of
the concerned OMC.
2. For all Appeals filed by the Dealer(s) on termination of
their RO dealerships due to invocation of MDG, except
termination incase of SC/ST dealerships, the appellate
authority will be the ED (Retail) in the Head Office or any other
ED level officer at the Head Office, so nominated by the
Company. For all cases of termination of SC/ST dealerships,
the appellate authority will be a Director other than Director
(Mktg.) of the OMC.
6. As per para 8.9(2), the appeal lies to the appellate
authority which is the Executive Director (E.D) (Retail) in the
Head Office or any other ED level officer of the Head Office, so
nominated by the Company.
7. Sri B. Chinnappa Reddy, learned counsel for the petitioner
submits that the appellate authority as mentioned above is of
rank equal to that of the ED State Head, TAPSO.
8. Any such plea has not been taken in the writ petition.
There is no factual foundation even for the submission that
both the authorities are of equal rank. Admittedly, the
authority passing the order of cancellation is neither the same
as the appellate authority, which was initially argued by the
learned counsel for the petitioner but was given up, nor the
appellate authority is below the rank of the ED & State Head,
TAPSO. Besides, there is no challenge to paragraph 8.9(2) of
the Gudelines providing for the constitution of the appellate
authority.
9. The impugned order dated 23.12.2022 is passed after
giving the show cause notice dated 18.05.2021 and filing of the
petitioner's reply also granting opportunity of personal hearing.
10. The preliminary objection is upheld.
11. In view of the alternative remedy of appeal under para 8.9,
this Court is not inclined to invoke its extraordinary jurisdiction
under Article 226 of the Constitution of India.
12. It is open to the petitioner to file the appeal, if so advised
as per law.
13. At this stage, learned counsel for the petitioner submits
that the petitioner filed writ petition on 20.01.2023 i.e. within
the period of 30 days from the date of receipt of copy of the
impugned order of termination, which was received on
03.01.2023, and now such period of 30 days prescribed under
paragraph 8.9 for filing the appeal, has expired and
consequently, if the petitioner files the appeal, the appellate
authority may not entertain the appeal.
14. Considering the aforesaid fact situation, to meet the ends
of justice, it is provided that if the appeal is filed within a period
of 15 days from the date of receipt of copy of this order before
the appellate authority, the same shall not be rejected on the
ground of filing the same beyond 30 days period.
15. The writ petition is dismissed only on the ground of
alternative remedy but with the aforesaid direction.
16. It is clarified that this Court has not made any observations
on the merits of the ground in the show cause notice or the
petitioner's reply or the grounds in the impugned order for
cancellation.
17. No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand closed.
__________________________
RAVI NATH TILHARI,J
Date:14.02.2023
Note:
Issue CC by 17.02.2023.
B/o.
Gk
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION No.1704 OF 2023
Date:14.02.2023
Gk.
