Santosh Kumar Singh vs Bharat Petroleum Corporation ...
2021 Latest Caselaw 5295 Cal

                          IN THE HIGH COURT AT CALCUTTA
                            Constitutional Writ Jurisdiction
                                    Appellate Side

Present :-   Hon'ble Justice Amrita Sinha

                                  WPA 6101 of 2018

                                Santosh Kumar Singh

                                          Vs.

                  Bharat Petroleum Corporation Limited & Ors.


For the writ petitioner          :-   Mr.   Debabrata Saha Roy, Adv.
                                      Mr.   Pingal Bhattacharyya, Adv.
                                      Mr.   Subhankar Das, Adv.
                                      Mr.   Neil Basu, Adv.

For respondent nos. 1 to 6       :-   Mr. Surojit Nath Mitra, Adv.
                                      Mr. Rajarshi Dutta, Adv.
                                      Mr. Bimalendu Das, Adv.
                                      Ms. Shomrita Das, Adv.

Hearing concluded on             :-   21-09-2021

Judgment on                      :-   01-10-2021



Amrita Sinha, J.

The petitioner prays for a direction upon the respondents to rescind, cancel

and/or withdraw the communication dated 30th May, 2017 issued by the Territory

Manager (Retail), Durgapur, BPCL whereby the prayer of the private respondent for

accepting his resignation has not been allowed.

The petitioner has made a further prayer to allow him to continue the retail

dealership at Chinpai, Birbhum as sole proprietor upon acceptance of the

resignation of the private respondent.

The brief facts of the case are as follows:

In response to an advertisement published by Bharat Petroleum Corporation

Limited (BPCL for short) on 12th August, 2001 for appointment of Retail Outlet

Dealer (Petrol Pump) (Company Owned) at Singur, Hooghly, reserved for Scheduled

Tribe category, the private respondent applied and became successful. A Letter of

Intent dated 5th December, 2001 was issued in his favour. Though Letter of Intent

was issued, but BPCL did not take any step for setting up of the Retail Outlet

Dealership.

A Scheme was framed by the Ministry of Petroleum and Natural Gas on 12th

December, 2006 to hand over Company Owned and Company Operated (COCO)

Retail Outlet Dealership to the pending Letter of Intent holders under Scheduled

Tribe category. After three years of publication of the Scheme, BPCL offered the

outlet in favour of the private respondent at Chinpai, Birbhum on 29th July, 2009.

A letter of appointment was issued in favour of the private respondent on 24th

October, 2009 and an agreement was executed between the parties i.e, BPCL and

the private respondent.

The private respondent claimed to have suffered severe financial losses in

the business. The private respondent thereafter approached BPCL for inducting a

financial partner for injecting finance to the business which was incurring huge

financial loss. The proposal of the private respondent was not accepted by the

Company. A writ petition was filed before this Court being WP 31253 (W) of 2014

and the same stood disposed of by an order dated 25th April, 2016 by directing the

petitioner therein, that is the private respondent herein, to repay the outstanding

dues within a specified time. BPCL was directed to consider the proposal of the

private respondent for reconstitution of commissioned dealership/distributorship

in accordance with law after giving an opportunity of hearing and to pass a

reasoned order.

The outstanding dues were cleared and the prayer of the private respondent

for reconstitution of the commissioned dealership stood allowed subject to

payment of Rs. 5,00,000/- (Rupees Five Lac) only as reconstitution fee. A

partnership deed between the petitioner and the private respondent was registered.

The partnership of the petitioner and the private respondent started functioning

from the month of November, 2016. On 18th March, 2017 the private respondent

submitted his resignation to BPCL, which the Company refused to accept. From

the date of submission of resignation, the private respondent remained aloof from

the business and the petitioner alone is running the business as sole proprietor.

The petitioner is aggrieved by the act of the Company in not accepting the

resignation of the private respondent. According to the petitioner, he invested huge

sum of money in the business and if the business is terminated at this stage then

the petitioner will suffer enormous financial loss. The petitioner relies upon the

policy of the Company dated 4th July, 2018 which permits resignation of partners.

It has been submitted that according to Clause G(3) relating to

Reconstitution of Commissioned Dealership as mentioned in the policy guidelines

which came into effect from 4th July, 2018, the sole proprietor/ all partner(s) can

resign from the dealership after three years of holding dealership and transfer his/

her/their shareholding in favour of family member(s)/existing partner(s)/outside

partner(s).

According to the petitioner, as the policy guideline of the Company permits

resignation of a partner after three years of holding dealership, accordingly, the

Company ought to accept the resignation tendered by the private respondent and

permit the petitioner to continue the business as sole proprietor.

The learned advocate representing the Company relies upon the

advertisement published by the Company in the year 2001 for appointment of

Retail Outlet Dealer. It has been highlighted that the vacancy in question is

reserved for a Scheduled Tribe candidate. The original applicant that is the private

respondent herein being a Scheduled Tribe candidate was granted the dealership.

Because of financial crisis he inducted the petitioner as a financing partner. The

maximum share in the partnership firm that is 75% was held by the Scheduled

Tribe candidate and the balance 25% was held by the petitioner, a general category

candidate. As the vacancy in question is reserved for Scheduled Tribe candidate,

accordingly the prayer of the petitioner for running the business as sole proprietor

cannot be accepted.

It has been submitted that in the unlikely event of the partnership firm being

reconstituted, the same may be permitted only if a Scheduled Tribe candidate

holds the maximum share in the business.

It is the further submission of the Company that the revised policy

guidelines of the Company which came into effect from 4th July, 2018 has to be

read as a whole. Clause 12 of the said guidelines relating to Reconstitution of

Commissioned Dealership mentions the general condition for induction of outside

category partner in Scheduled Caste/Scheduled Tribe dealership. It mentions that

shareholding of persons belonging to the category reserved for SC/ST should be at

least 75% of the total shares.

It has been submitted that the petitioner and the private respondent has

filed an affidavit before the Company declaring that under the partnership

agreement the dealer will not make any change in the constitution of the firm

without prior written approval of the Corporation. The Deed of Partnership of the

firm dated 17th September, 2016 between the petitioner and the private respondent

clearly lays down in paragraph 24 that, if any of the partners intend to retire from

the partnership, then prior permission of the Corporation has to be taken. No

change in the constitution of the partnership deed will be made without prior

approval of the Corporation. Prayer of the private respondent for acceptance of his

resignation has rightly been turned down by the Company.

The respondents rely upon the judgment of the Hon'ble Supreme Court in

the matter of Michigan Rubber (India) Ltd. -vs- State of Karnataka & Ors.;

(2012) 8 SCC 216 paragraph 35 wherein the Court held that the Courts cannot

interfere with the terms of the tender prescribed by the Government. The

Government and their undertakings must have a free hand in setting terms of the

tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the

Courts would interfere.

The respondents pray for dismissal of the writ petition.

I have heard the submissions made on behalf of both the parties and have

perused the documents relied upon by them.

The advertisement which was published in the year 2001 was restricted to

Scheduled Tribe candidates. The private respondent, being a Scheduled Tribe

candidate, applied in response to the said advertisement. He was successful and a

Letter of Intent was issued in his favour in December, 2001. The Company in

terms of the guidelines framed by the Ministry of Petroleum and Natural Gas

offered temporary COCO Retail Outlet Dealership to pending Letter of Intent

holders according to priority. Pending allotees, LOI holders of Corpus Fund

Scheme (SC/ST category) of dealership were taken into consideration.

The initial Letter of Intent which was issued to the private respondent for the

proposed Retail Outlet at Singur was withdrawn on 25th September, 2009 and a

fresh letter of appointment was issued in favour of the private respondent on 24th

October, 2009 in respect of the Retail Outlet Dealership at Chinpai in the district

of Birbhum opposite to the Bakreswar Power Plant of NH 60 under the Scheduled

Tribe category.

The private respondent was facing financial crunch in running his business.

Accordingly, he applied before the Company for inducting a financial partner

which was initially not accepted, but subsequently in terms of the order passed by

the Court the prayer for inducting financial partner was accepted by the Company.

A partnership deed was executed between the partners i.e, the petitioner and the

private respondent. Paragraphs 24 and 25 of the deed of partnership specifically

mentions that no change in the constitution of the partnership deed will be made

without prior approval of the Company and if any of the partners intend to retire

from the partnership firm, prior permission of the Company has to be obtained.

The private respondent accordingly sought permission from the Company for

retiring from the partnership business. The private respondent submitted his

resignation in March, 2017 and thereafter he remained disassociated from the

business. Surprisingly, the private respondent has not approached the Court

praying for acceptance of his letter of resignation. It is the petitioner who holds

only 25% share in the partnership business, has approached this Court with a

prayer for accepting the resignation of the private respondent and to permit him to

continue the business as sole proprietor.

The prayer for resignation stood disallowed only on the ground that the

vacancy in question was reserved for a Scheduled Tribe candidate. As the

Scheduled Tribe candidate, that is, the private respondent herein was the original

allotee he cannot be allowed to resign from the business and the petitioner herein

being a general category candidate cannot be permitted to run the business in the

absence of a Scheduled Tribe partner.

Admittedly, the vacancy in question was reserved for Scheduled Tribe

candidate. Allowing the petitioner to run the same as sole proprietor will amount

to changing the classification of the vacancy. Reserved vacancy cannot be de-

reserved in such a manner. A formal order of de-reservation has to be made prior

to de-reserving a reserved category vacancy. The petitioner at the very first

instance was ineligible to run the business, independently, being a general

category candidate. Had it not been for the private respondent, the petitioner

would not have got the chance to start the business, far less continue with the

same.

It is settled law that things which cannot be done directly cannot be done

indirectly. Permitting a general category candidate to run a vacancy reserved for

Scheduled Tribe will amount to doing an act which was not initially permissible.

Submission of the petitioner that as the Company permitted reconstitution

of dealership by inducting the petitioner as 25% shareholder of the business, the

nature of vacancy changes to a general category vacancy, is not accepted by the

Court. As the vacancy was reserved for a Scheduled Tribe candidate the Company

consistently insisted that the maximum share of the business remains with the

Scheduled Tribe candidate. The petitioner merely happens to be the minor

shareholder with 25% share in the business. It may be, that the petitioner invested

huge sum of money in running the business, but the same does not change the

status of the vacancy in any manner. The vacancy remains earmarked for

Scheduled Tribe candidate.

The policy guideline of the Company which came into effect on 14th July,

2018 has to be read as a whole. Only a single provision relating to resignation of

partner from the dealership cannot be read in isolation of other clauses which are

equally relevant for the purpose of giving an effective meaning to the guidelines.

The guidelines permit resignation of partners in favour of existing partners. But

the same has to be read in conspectus of a vacancy reserved for Scheduled Tribe

candidate. The clauses of the policy guidelines relating to reconstitution of

commissioned dealership has to be read in conjunction with each other. A holistic

reading of the various clauses of the policy guidelines makes it abundantly clear

that in case of reserved vacancies the maximum share in the business has to be

held by the reserved category candidate and not by the general category candidate.

Accordingly, the decision of the Company in refusing to accept the prayer of

resignation of the private respondent and consequently not permitting the

petitioner to run the business as sole proprietor does not call for any interference.

The petitioner has neither challenged nor is aggrieved by any of the clauses

mentioned in the policy guidelines and accordingly no comment is being made in

respect of the decision relied upon by the Company in support of the policy.

The writ petition fails and is hereby dismissed.

WPA 6101 of 2018 is dismissed.

Urgent certified photo copy of this judgment, if applied for, be supplied to

the parties expeditiously on compliance of usual legal formalities.

(Amrita Sinha, J.)