M/S Shree Ram Fuel Centre vs The Bharat Petroleum Corporation ...
2021 Latest Caselaw 6217 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.1101 of 2021
     ======================================================

M/s Shree Ram Fuel Centre a Proprietorship firm having its Place of Business at BRO GATE number 10, Mosadpur, P.O.-Tilrath, District- Begusarai through its Proprietor namely Kanchan Kumari female aged about 34 Years Wife of Sandeep Singh, resident of Ward No.11, P.O.-Tilrath, Telar, District-Begusarai.

... ... Petitioner/s Versus

1. The Bharat Petroleum Corporation Ltd. Company incorporated Under the Companies Act, 1956 having its Registered Office at Bharat Bhawan, 4 and 6 Currimbhoy Road, Ballard Estate, Mumbai-400001 through its Chairman.

2. The General Manager, Bharat Petroleum Corporation Ltd. Regional Office, Kolkata.

3. The Deputy General Manager, Transport, (Retail) East, Bharat Petroleum Corporation Ltd. Eastern Regional Office, Kolkata.

4. The Deputy General Manager Operations I/C (Retail) East, Eastern Regional Office, Bharat Petroleum Corporation Ltd. Kolkata.

5. The Chief Manager, Transport, Bharat Petroleum Corporation Ltd. Regional Office, Kolkata.

6. The Senior Manager Operations I/C, Bharat Petroleum Corporation Ltd.

Barauni TOP, Begusarai.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s   :      Mr. Gautam Kumar Kejriwal, Adv
                                   Mr. Alok Kumar Jha, Adv
     For BPCL               :      Mr. Sanjay Singh, Sr. Adv
                            :      Mr. Rudrank Shivam Singh, Adv

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)

Date : 17-12-2021

The writ petition has been filed by the petitioner

firm dealing in business of transportation of petroleum

products for the oil marketing companies. Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

The relief prayed for is issuance of a writ of

certiorari quashing a decision communicated through letter

dated 20.08.2020 by the Deputy General Manager, Transport

(DGM, Transport), whereby and where-under the said

respondent no. 3 has blacklisted tank lorry bearing registration

no. BR09 GA 5576 for a period of two years, with immediate

effect. A penalty of Rs. one lakh including GST @ 18% on

penalty has also been decided to be imposed.

The decision is expressed to be under various

terms and conditions of the transport agreement and clause

8.1 of the Industry Transport Discipline Guidelines (ITDG).

The authority has allowed the petitioner firm to operate other

tank lorry in accordance with the statutory requirements and

prescribed safety standards; and other applicable terms,

conditions and norms. The impugned letter dated 20.08.2020

also reiterates the consequences of suspension of contract and

blacklisting in the event, the petitioner firm's tank lorry or

crew indulge in any such activity prejudicial to the business of

the Corporation in future directly or indirectly, whether inside

or outside the premises.

Brief facts as per writ petition are that the tank

lorry, in question, was loaded with 24 KL HSD (High Speed Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

Diesel) on 07.07.2020 at the Barauni TOP, being the loading

location. The same was en route to M/s. Monte Carlo Limited,

at Barjora. The same reached the customer's premises on

18.07.2020. Since the supply reached the destination after

about eleven days, the consignee (M/s. Monte Carlo Limited)

refused to accept the same. The tank lorry was thus diverted

to Railway Consumer Depot (RCD) Katihar by creating a new

invoice on 23.07.2020. On arrival at this customer's premises,

quality check was undertaken before decantation of the HSD

on 26.07.2020 by customer. In the quality check, a mismatch

in density of HSD was observed.

A show-cause dated 26.07.2020, was issued by

the Barauni TOP calling an explanation from the petitioner

for the above acts. Petitioner replied to the show-cause,

wherein it was emphasised that the lab report had found the

product to be HSD and that variation in density may have

occurred due to mistake in testing. He thus requested for the

tank lorry to be decanted. As per pleading in the writ petition,

the petitioner requested for sampling afresh of the product in

question. The Corporation accordingly fixed fresh sampling

on 27.07.2020, under due intimation to the petitioner vide

email which is evident from Annexure-7 of the writ petition. Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

Thereafter, samples were collected and tested in presence of

authorised representative of the petitioner and duly signed by

all the persons which is evident from Annexure-8 of the writ

petition. It is petitioner's specific case that there was no

complain at all that the security locking system and seal put

by the corporation was in any way tempered or interfere with.

To ensure that the mismatch was not based on

residual product of the last load, some quantity was taken out

from the top, some from bottom line of the tank lorry and

some composite samples were drawn from the chambers to

ensure proper assessment. From Annexure-8, it is also evident

that sample re-testing was done at a temperature of 15°C.

However, there was no change in the result. Similar samples

were taken out from all the five compartments of the tank

lorry in question in presence of the lorry driver, petitioner's

representative, namely, Mr. Sujit Singh, representative of

RCD Katihar (the consignee), as well as BPCL representative,

which is evident from the fact that Annexure-8 bears their

signatures. Samples were sent for testing to the BPCL

laboratories along with retention samples from the supply

location (Barauni TOP).

The lab report results were as follows:

Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

1. Tank lorry samples of chamber 1, 3, 4 & 5

are meeting requirement of HIGH SPEED

DIESEL(VI) w.r.t tests carried out as per IS

1460-2017 (Latest Revision).

2. The results of density and total sulphur

are beyond permissible/reproducibility limit

of corresponding supply location sample.

3. Chamber 02 us failing in meeting

requirement of HIGH SPEED DIESEL (VI).

4. Further the density variations in chamber

1, 2, 3 & 4 of lorry and invoice density is

beyond permissible limits. Chamber 05

density is matching with invoice.

5. The corresponding HSD retention samples

of supply location met the specification of

HSD BSVT.

Thereafter, petitioner was served with the

impugned letter dated 20.08.2020, blacklisting tank lorry in

question and imposing a penalty of Rs. 1 lakh including GST

@18% on penalty.

The counsel for the petitioner has raised two

submissions for consideration in the course of hearing today.

Firstly, he has submitted that it is nobody's case

that there was any interference with the security locking Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

system of the tank lorry in question. The second submission is

that no show-cause was issued to her pursuant to the sampling

which was done and the blacklisting of the tank lorry in

question has been done straight away without complying with

the Principles of Natural Justice. Under these circumstances,

the petitioner cannot be held liable for the variation in density

observed during sampling.

The petitioner has also raised an issue in the writ

petition that density sampling of the samples collected on

27.07.2020 was done at temperature ranging between 30°C to

32°C and not at the required temperature as per ITDG, i.e.

15°C.

Learned counsel for BPCL, on the other hand, has

submitted that the petitioner is a firm dealing in transportation

of Motor Spirit and High Speed Diesel (MS and HSD) for

general public consumption. The ITDG issued by the oil

industry as per advice of the Ministry of Petroleum and

Natural Gas (MOP&NG) provides a uniform mechanism in

the larger public interest for ensuring supply of quality MS

and HSD to the public by transporters like the petitioner. The

ITDG has been made applicable as per the Letter of Intent

(Annexure-2) dated 29.10.2018 issued by the respondent Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

Corporation. The ITDG also forms part of the contract entered

into by the petitioner with the Corporation for transportation

of MS and HSD. The relevant extract of the LOI dated

29.10.2018 (Annexure-2) in the case is being reproduced :

All terms and conditions stipulated in

the Notice Inviting Tender, Guidelines for

Tenderers. Tender Terms & Conditions,

Declarations, Transport Agreement,

Industry Transport Discipline Guidelines

and other documents furnished along with

the Tender and related correspondence shall

form part of the contract. (emphasis mine)

This court exercising judicial review under

Article 226 of the constitution of India, may therefore confine

its judicial review to see whether the decision making process

is as per the ITDG or not. The ITDG provides a uniform, non-

discretionary and non-arbitrary procedure which is applicable

across the oil making companies throughout the country.

Procedural fairness is implicit in the ITDG. The petitioner by

virtue of the Letter of Intent dated 29.10.2018 and the

Transport Agreement is conscious of, and has agreed to

application of the ITDG to his transport business operations,

without demur.

Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

Learned counsel for the Corporation thereafter

has submitted that the issue, raised in the pleadings regarding

sample being collected at a temperature other than what is

prescribed in the ITDG, is a self serving statement based on

an after thought. Not even a chit of paper has been produced

to show that he had made any such objections at the time of

sampling or even till issuance of the impugned letter dated

20.08.2020. In fact petitioner's authorised representative has

signed the sampling report (Annexure-8) wherein it has

specifically been mentioned that sampling was done at 15°C.

In so far as the other submission raised by the

petitioner that the security seals were intact, he has drawn

attention of the Court towards the prescribed procedure as

contained in the ITDG. As per the same, on arrival of the tank

lorry at the consignee destination, if the security locking

system is found O.K then as per clause 4.1.2.1. the procedure

under 4.1.3 is to be followed which is as follows:

4.1.3 Density Checking

On arrival of TT, dealer/ customer

shall check the density @ 15 deg C of

product from each compartment. If the

variation is found to be within +/- 3 kg/cum

as compared with the invoice density, steps Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

as mentioned in clause 4.1.4 to be followed.

However, if variation in the observed density

is beyond +/- 3kg/ cum, the TT shall not be

uploaded and action shall be taken as

mentioned in 4.5.1.

In the instant case from the pleadings, it is

apparent that sampling has been done as per this clause in

presence of authorized representative of the petitioner without

any objection being raised on 27.07.2020. The samples were

drawn from various compartments of the tank lorry in

question in presence of a driver, petitioner/representative and

others. The samples were sent to the lab for testing in

accordance with the procedure prescribed in the ITDG. As per

the procedure prescribed in clause 4.2, 4.3 and 4.4 of the

ITDG, since the lab report results confirmed that density and

total sulphur were beyond permissible/reproducibility unit of

corresponding supply location sample, action was required to

be taken as outlined in clause 8 of the ITDG. The petitioner's

firm came within clause 8.1 (a)(ii) and as such being the first

incident was liable to be dealt with as per the stipulations

contain there which are being reproduced:

II. Carriers on multiple TTS

On the first incident (during the Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

tenure of the contract) of adulteration, the

particular TT shall be blacklisted on

Industry basis along with the TT crew. In

case of second incident of adulteration, the

whole contract comprising of all the TTs

belonging to the concerned carrier shall be

terminated and the concerned carrier &

their all TTs shall be black listed on industry

basis. However, if the complicity of the

carrier is detected in case of adulteration of

the first incident, then the whole contract

comprising of all the TTs belonging to the

concerned carrier shall be terminated and

the concerned carrier & their all TTs shall

be black listed on industry basis.

b. Disposal of the contaminated

product shall be done as directed by the

company.

c. Cost of product as determined by

the company shall be recovered from the

carrier.

d. Incidental expenses and any other

expenses sustained by the concerned Oil

Company for disposal of the contaminated

product shall also be recovered from the

transporter.

Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

e. Transportation charges, octroi, toll

taxes, other levies shall not be paid for the

futile trip to the dealer/ direct customer or

receiving location as well as for the

subsequent trip for delivering the

adulterated/ contaminated product the

concerned Oil Company's nominated

location for disposal of the product.

Having considered the submissions advanced by

the parties this court finds that the entire procedure prescribed

in the ITDG has been followed. Admittedly, samples were

drawn in presence of the petitioner, the density was found to

be at variance and there is no objection raised by the

petitioner at the time of sampling regarding any non

compliance with the prescribed procedure for sampling. The

fact that the samples have failed therefore cannot be disputed

by the petitioner. The consequences that have followed such

failure of sampling are strictly as per procedure prescribed in

the ITDG. There is no infirmity in the decision making

process as per the averments in the writ petition.

There is no allegation that the seals were found to

be tampered or broken. The plea that the security seals were

intact therefore, is of no relevance as in the instant case Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

authorities have proceeded on the presumption that the seals

were intact as per procedure prescribed for such circumstance

as contained in clause 4.1.2.1 which mandates density

checking as per clause 4.1.3 only if the security locking

system is found OK, as in the instant case. If on the other

hand the security locking system was to be found tampered,

then as per the same clause 4.1.2.1 it would have been

construed as a malpractice.

The plea that show-cause was not issued to the

petitioner, is untenable as the density samples had already

failed in presence of the petitioner/representative on

27.07.2020, when it was sent for lab testing as per the

procedure contained in the ITDG to which she has raised no

objection till issuance of the impugned letter dated

20.08.2020. Petitioner's authorised representative has signed

on the sample testing report (Annexure-8) without any demur.

Having regard to inherent procedural fairness ensured by

testing samples in presence of the transporter and his driver,

subsequent plea of there being no show-cause therefore is

nothing but an after thought by the petitioner, having no

relevance.

Under these circumstances, this Court is of the Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

opinion that the plea regarding non-compliance with the

Principles of Natural Justice in the instant case is not tenable.

The tank lorry samples had already failed in presence of

petitioner/her representative on 27.07.2020 and no objection

whatsoever was raised by the petitioner. It is in her presence

that the samples were collected, sealed and sent for testing to

the laboratory, failure of the tank lorry samples in the density

test was thus a fait accompli. The action has been taken

strictly as per the ITDG. The facts and circumstances,

therefore, are such that no prejudice can be said to have been

caused to the petitioner for non-issuance of a show cause prior

to the impugned order of blacklisting.

Facts being so, this Court would observe that the

law regarding applicability of the Principles of Natural Justice

has been examined from many aspects by several decisions of

the Hon'ble Apex Court. By now it is settled that there may

be situations where opportunity of fair hearing or no

opportunity of fair hearing would make no difference as it

would not be likely to change the ultimate conclusion reached

by the decision maker. This is one such case. The fact that the

authority, before issuing the impugned order of black-listing

the tank lorry had proceeded for testing of the tank lorry Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

samples in presence of the petitioner/her representative and

the fact that it has failed in her presence, without any demur

observing the procedure prescribed under the ITDG, is clear

from the averments made in the writ petition and submissions

advanced by the parties. This Court, therefore, relies upon

paragraph 39 of a judgement of the Hon'ble Apex Court in the

case of Dharampal Satyapal Ltd. v. CCE, (2015) 8 SCC 519,

paragraph 39 of which is considered relevant in the facts and

circumstances of the present case; and is thus being

reproduced:

"39. We are not concerned with

these aspects in the present case as the

issue relates to giving of notice before

taking action. While emphasising that

the principles of natural justice cannot

be applied in straitjacket formula, the

aforesaid instances are given. We have

highlighted the jurisprudential basis of

adhering to the principles of natural

justice which are grounded on the

doctrine of procedural fairness, accuracy

of outcome leading to general social Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

goals, etc. Nevertheless, there may be

situations wherein for some reason--

perhaps because the evidence against

the individual is thought to be utterly

compelling--it is felt that a fair hearing

"would make no difference"--meaning

that a hearing would not change the

ultimate conclusion reached by the

decision-maker--then no legal duty to

supply a hearing arises. Such an

approach was endorsed by Lord

Wilberforce in Malloch v. Aberdeen

Corpn. [(1971) 1 WLR 1578 : (1971) 2 All

ER 1278 (HL)] , who said that: (WLR p.

1595 : All ER p. 1294)

"... A breach of procedure ...

cannot give [rise to] a remedy in the

courts, unless behind it there is

something of substance which has been

lost by the failure. The court does not act

in vain."

Relying on these comments, Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

Brandon L.J. opined in Cinnamond v.

British Airports Authority [(1980) 1 WLR

582 : (1980) 2 All ER 368 (CA)] that: (WLR

p. 593 : All ER p. 377)

"... no one can complain of not

being given an opportunity to make

representations if such an opportunity

would have availed him nothing."

In such situations, fair procedures

appear to serve no purpose since the

"right" result can be secured without

according such treatment to the

individual."

In the facts and circumstances taken note of

hereinabove, the High Court exercising jurisdiction under

Article 226 of the Constitution of India would limit its review

to the decision making process which in the instant case

cannot be flawed in any manner. There is no legal basis or

scope otherwise, for this Court to interfere in the matter in

exercise of judicial review by sitting in appeal over the

decision communicated under letter dated 20.08.2020.

Patna High Court CWJC No.1101 of 2021 dt.17-12-2021

The writ petition is accordingly dismissed.

( Madhuresh Prasad, J)

Chakradhari Sharan Singh, J:

(Chakradhari Sharan Singh, J)

SUMIT/-

AFR/NAFR
CAV DATE                10.12.2021
Uploading Date          24.12.2021
Transmission Date       24.12.2021