Bhatia Service Station And Anr. vs Indian Oil Corporation And Anr.
2003 Latest Caselaw 727 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The petitioner runs a petrol pump near Bhikaji Cama Place on Ring Road at New Delhi. On 6.6.2001, the petitioner received a delivery of petrol and diesel from the respondent. The petitioner maintains 5 tanks and the goods received on 6.6.2001 were unloaded in Tank Nos. 2 and 3. On 9.6.2002, an inspection was carried out by the respondent and samples were taken from each of the five tanks. The samples, taken from the tanks, were sent to the laboratory for testing. Apparently, the inspection was done and samples were taken in view of a complaint dated 5.6.2002 which was received by the respondent on 7.6.2002. On 13.6.2002, the petitioner received a letter from the respondent entitled "Sub : Fact finding report" in which it was indicated that the samples taken from the tank No.2 and 3 failed to meet the specification in respect of requirement of RON Test as well as distillation test and copies of the test reports were enclosed with the said letter. This letter was in the form of a show cause notice inasmuch as the petitioner was required to indicate the reasons for the failure of the samples drawn from the outlet within seven days of receipt of the letter. In reply, the petitioner sent a letter dated 17.6.2002 wherein it indicated that as per the guidelines for testing, the retention sample of the tank lorry ought to have been tested before the fact finding report could have been given and the show cause notice could have been issued. This, according to the petitioner, was as per the Marketing Discipline Guidelines 2001 which was applicable.

2. By the letter dated 17.6.2002, the petitioner also requested the respondent to carry out the test of the tank lorry samples which were retained by them and taken by them on 9.6.2002 itself when the samples were drawn from the five tanks. It is the petitioner's contention that when the samples are taken from the tanks, the retention samples are also taken for testing and the two have to be tested simultaneously.

3. Subsequently, the tank lorry samples of TT. No. HR 38B5048 for 6.6.2002(seal No.480601x2) were also tested and the test reports indicated the failure of the samples. Thereafter, an order dated 17.10.2002 (which is the order impugned in the present petition) was passed by the Chief Regional Manager of the respondent whereby the petitioner's sales and supplies were suspended for 30 days and the petitioner was also directed to deposit a fine of Rs. 20,000/-. I am informed by the learned counsel for the parties that the suspension period is over and the amount also has been deposited under protest by the petitioner.

4. From a look at the test reports in respect of the samples drawn from tank No.2 and 3 which are annexures R2 and R3 to the counter affidavit filed by the respondent, it appears that the only test that has been failed is with regard to the Research Octane No (RON). Whereas the specified minimum RON is 88, the samples for tank Nos. 2 and 3 were 75.0 and 78.0 respectively and as such the same were not according to specifications. This is the only ground on which the order of suspension and fine was made.

5. The learned counsel for the petitioner has drawn my attention to annexure R-7 to the counter affidavit filed on behalf of the respondent which is the test report for the retention sample which was received in the laboratory on 19.6.2002 although the same was taken along with other samples of 9.6.2002. The test report indicates that this retention sample not only failed the RON test but it also failed the distillation test. Hence, it is clear that the retention sample, that is the sample which was taken at the time of supply of the fuel on 6.6.2002 and retained under seal with the petitioner, has failed the test. This prima facie would clearly indicate that the petrol that was supplied to the petitioner by the tank lorry was itself not according to specification. Although, learned counsel for the respondent pointed out that the mother sample that was retained by the respondent had tested as being as per specification. By inference, it is suggested that this would mean that the retention sample was tampered with by the petitioner. I am unable to agree with this contention because the retention sample is sealed and there has been no observation with regard to the tampering with the seal. It is quite possible that the petrol might have been adulterated in transit. It cannot be stated with certainty that as a finding of a fact that the petitioner was guilty of adulteration.

6. There is another aspect of the matter. When the show cause notice was issued on 13.6.2002, the tank lorry sample had yet not been sent for testing and it was only sent for testing by the respondent upon receipt of the letter dated 17.6.2002 from the petitioner. It is clear that on 13.6.2002 without having the tank lorry sample tested, the respondents could not have arrived at the conclusion that they had. In this view of the matter also the respondent's action in suspending and imposing fine on the petitioner cannot be said to be correct and the correct procedure has not been followed.

7. In view of the foregoing discussion, the order dated 17.10.2002 is set aside. However, it is open to the respondent to investigate as to how the petrol that was supplied to the petitioner was adulterated in transit. If the respondent wants to conduct any such investigation, the petitioner shall fully cooperate in the same.

8. With these directions and observations, the writ petition is allowed to the extent indicated aforesaid. There shall be no order as to costs.