Patna High Court
M/S Gauri Shankar Indane Service vs Indian Oil Corporation Ltd on 15 January, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7295 of 2020
======================================================
M/S Gauri Shankar Indane Service Kuchaikote, District- Gopalganj through
its Proprietor Ravi Pandey, Male-32, years, S/o Late Gauri Shankar Pandey,
R/o Flat No. 201, Sindhu Nilay Apartment, Yaduvansh Path, Nageshwar
Colony, P.S.- Buddha Colony, District- Patna.
... ... Petitioner/s
Versus
1. Indian Oil Corporation Ltd. Through Executive Director (ED), Bihar State
Office, Lok Nayak Jai Prakash Bhawan, 5th Floor, Dak Bungalow Chowk,
Frazer Road, Patna- 800001.
2. The General Manager I/c. (LPG) Bihar State Office, Lok Nayak Jai Prakash
Bhawan, 5th Floor, Dak Bungalow Chowk, Frazer Road, Patna- 800001.
3. The Dy. General Manager (LPG) Area Office, Patna under Bihar State
Office, Indian Oil Corporation Ltd., Sahi Bhawan, Exhibition Road, Patna.
4. Mr. Udai Kumar Son of Not Known General Manager I/c. (LPG), Bihar
State Office, Lok Nayak Jai Prakash Bhawan, 5th Floor, Dak Bungalow
Chowk, Frazer Road, Patna- 800001.
5. Mr. Arun Prasad Son of Sri R.N. Prasad The then Chief Area Manager, LPG,
Patna Area Office, at present General Manager, I/c. LPG, UPSO-1,
Lucknow, Resident of 402, Maa Sharde Complex, East Boring Canal Road,
P.S. Budha Colony, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Y.S. Lohit, Advocate
: Mr. Vivek Prasad, Advocate
: Mr. Ranjan Kumar Srivastava
For the Respondent/s/
IOCL : Mr. Anil Kr. Jha, Sr. Advocate
: Mr. Sanat Kumar Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
ORAL JUDGMENT
Date : 15-01-2021
The present writ petition has been filed for quashing the
order dated 03.06.2020, passed by the General Manager
(L.P.G.), Bihar State Office, Indane Oil Corporation Limited,
whereby and whereunder the representation of the petitioner
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
2/72
dated 23.05.2020 has been rejected.
Facts of the Case
2. The brief facts of the case, according to the petitioner, are
that the proprietor of the petitioner firm is Sri Ravi Pandey and
his deceased father namely Late Gauri Shankar Pandey had
applied for Indane distributorship at Kuchaikote, District-
Gopalganj, Bihar under the freedom fighter category and upon
being declared successful, the Letter of Intent was issued in
favour of the father of Sri Ravi Pandey on 30.10.2008, however
unfortunately, he died on 31.10.2008. Thereafter, Sri Ravi
Pandey is stated to have applied, vide application dated
17.02.2009, for transfer of his late father's Distributorship,
whereupon the respondents had called Sri Ravi Pandey for
interview, which was conducted on 26.02.2009. It is stated that
the respondent-Corporation had also held field verification and
after finding Sri Ravi Pandey to be fully eligible for being
granted L.P.G. Distributorship, the Letter of Intent was issued in
his favour vide letter dated 08.04.2009. The proprietor of the
petitioner firm is stated to have constructed a godown and
invested a sum of Rs. 30 lacs approximately for smooth running
of the dealership in question. Subsequently, an agreement was
executed on 07.09.2009 in between the proprietor of the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
3/72
petitioner firm and the respondent-Corporation for 05 years. A
theft is stated to have taken place in the office of the petitioner
firm, during the course whereof, the proprietor of the petitioner
firm is stated to have lost documents including bank pass-book,
leading to filing of an F.I.R. bearing Kuchaikote PS Case no. 6
of 2011 dated 13.01.2011.
3. The further case of the petitioner is that the
respondent-Corporation being satisfied with the performance of
the petitioner's Distributorship as also upon verification of the
requisite documents/ papers submitted by Sri Ravi Pandey for
the purposes of renewal of his Distributorship, had renewed the
petitioner's Distributorship and a fresh agreement/ renewal
agreement dated 25.10.2016 was executed in between Sri Ravi
Pandey and the respondent-Corporation. While the petitioner's
Distributorship was running smoothly, in order to harass him,
his erstwhile employee namely Rajesh Pandey had filed a false
complaint dated 16.10.2018, regarding the petitioner having not
complied with the mandatory guidelines for the purposes of
grant of Distributorship in question. The respondent-
Corporation had then issued a show cause notice dated
29.08.2019 to the petitioner herein for the purposes of seeking
its reply regarding termination of the Distributorship in question
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
4/72
on the ground that fabricated Bank statement and false
educational certificates have been submitted by the proprietor of
the petitioner firm and his father for the purposes of grant of the
Distributorship in question. In the said show cause, it was
alleged that though the proprietor of the petitioner firm in his
application dated 17.02.2009 had mentioned that he had a
balance of Rs. 20,40,000/- in his Savings Bank Account no.
014111 with Siwan Central Co-operative Bank Limited, Siwan,
however upon confirmation from the said Bank, the balance in
the said account has been found to be a meagre sum of Rs.
2,40,000/- as on 14.02.2009. In the said show cause notice dated
29.08.2019, it was also stated that the aforesaid Bank has also
confirmed that the certificates dated 14.02.2009 and 09.03.2009
submitted by the proprietor of the petitioner firm in support of
his financial status to the extent that he was having a balance of
Rs. 20,40,000/- as on 14.02.2009 in his Bank Account as also
the pass-book provided by him along with his application, had
not been issued by the said office of the Bank in question. The
petitioner is stated to have filed his show-cause reply, whereafter
the respondent-Corporation by a detailed order dated 30.12.2019
had terminated the Distributorship of the petitioner situated at
Kuchaikote, in violation of Clause no. 11 of the Distributorship
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
5/72
Selection Guidelines dated 29.06.2007 and Clause no. 27(1) of
the Distributorship Agreement dated 25.10.2016, relevant
paragraphs whereof is reproduced herein below :-
"In view of the above, your distributorship M/s
Gauri Shankar Indane Service, Kuchaikote is
hereby terminated with immediate effect in
violation of clause no. 11 of the distributorship
selection guidelines dtd 29.06.2007 & clause no. 27
(1) of the distributorship agreement dtd 25.10.2016
signed between you and the Corporation."
4. The petitioner had challenged the aforesaid order of
termination dated 30.12.2019 by filing a writ petition bearing
C.W.J.C. no. 559 of 2020, however the same has stood
dismissed by a Judgment dated 22.05.2020, passed by a
co-ordinate Bench of this Court, relevant paragraphs whereof
are reproduced herein below :-
"5. What is now being questioned and doubted is
whether the information provided by the petitioner
regarding the amount of money parked in his bank
account was incorrect, rendering the licence of the
petitioner liable to be Patna High Court cancelled
and the contract agreement to be rescinded as a
consequence thereof.
6. As has already been noted by this Court, the
arguments for and against the parties are only to
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
6/72
the extent that the information regarding the
financial strength of the petitioner at the relevant
time was verified by the officers of the
respondent/Corporation, who found the assertion
of the petitioner to be correct and that the
petitioner has been able to run the agency without
any complaint whatsoever for two consecutive
terms. The contra arguments are that running an
agency without any complaint is not relevant,
when a decision is required to be taken on finding
that the very grant of licence at the relevant time
was flawed because such licence was granted on
an information which was not correct.
7. Perused the records.
8. The field verification report appears to have
been submitted without physically verifying the
amount parked in the bank account of the
petitioner. It further appears that the certificate
issued by the Co-operative Bank Patna High
Court that the petitioner has rupees Twenty Lacs
Forty Thousand (Rs. 20,40,000/-) in his account is
also not without doubt as the Bank has now
certified that such a certificate was never issued
by the Bank. The amount available in the Bank
account of the petitioner at the relevant time was
only rupees Two Lacs Forty Thousand (Rs.
2,40,000/-)
9. Great efforts have been undertaken by the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
7/72
learned Senior Counsel for the petitioner to
impress upon this Court that in the absence of an
opportunity to the petitioner to question the two
officers of the Corporation who had conducted the
field verification and in the absence of the
concerned Bank as a party/respondent in the
present writ petition, it would not be advisable to
accept the statement of the
respondent/Corporation that the letter issued by
the Bank disclosing rupees Twenty Lacs Forty
Thousand (Rs. 20,40,000/-) in the bank account of
the petitioner is not correct and that such
certificate had never been issued. It was urged
that once such information [petitioner having
rupees Twenty Lacs Forty Thousand (Rs.
20,40,000/-) in his bank account] was found to be
correct and the respondent/ Corporation had
every wherewithals to test its correctness and such
factual position was never countered, it cannot
now be questioned as being incorrect statement
having been made deliberately for bagging the
contract.
10. As noted earlier, the argument of the
respondent/Corporation is that fraud vitiates
everything and, therefore, the decision of the
Corporation ought not to be tinkered with.
11. In support of the aforesaid contentions,
learned counsel for the petitioner has drawn the
attention of this Court to a judgment of the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
8/72
Supreme Court in Sajeesh Babu K. Vs. N.K.
Santhosh & Ors.; (2012) 12 SCC 106, wherein it
has been held that in matters of
appointment/selection by an Expert
Committee/Board, consisting of qualified persons
in a particular field, normally, the Courts should
be slow to interfere with the opinions by the
experts, unless there is an allegation of mala fides
against the experts who were part of the selection
committee. In the aforesaid case, the appellant
was selected as a licensee of LPG Distributorship
on the basis of other qualifications including
experience as he had disclosed that while studying
for M.Tech., he had worked as a Marketing
Manager and an Insurance Consultant and had
relied upon such experience. The High Court of
Kerala found it to be totally unacceptable that the
appellant could have gained such experience
while studying for M.Tech. The licence of the
appellant therein was, therefore, cancelled and
such decision of the learned Single Judge of the
High Court was affirmed by the Division Bench. It
was in that context that the Supreme Court had
opined that when an expert body had accepted the
correctness of the certificate of experience of the
appellant therein, the High Court ought not to
have doubted the same.
12. The issue at hand does not get resolved by the
dictum of the Supreme Court that normally in
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
9/72
matters of opinion rendered by an expert body,
there should be minimal interference by the Courts
of law. The field officers of the
respondent/Corporation are no experts, but were
only assigned with the task of verifying factual
aspects regarding the candidature of the
petitioner. Any opinion of the field officers or any
certificate of the Bank cannot be said to be an
"expert's opinion".
18. With respect to the principle of natural justice
in conducting the proceedings, the submissions
urged on behalf of the petitioner is that in the
absence of any opportunity to the petitioner to
cross-examine the two officers of the respondent/
Corporation who had submitted the verification
report, the decision/order could not be sustained,
is not acceptable. The report is in the positive and
it is only because of such report that the petitioner
was chosen as a licensee. However, the foundation
of the report being ultimately found to be
incorrect, the decision of the
respondent/Corporation cannot be questioned.
The petitioner has not been able to deny
categorically or assert positively that the
allegation of lesser amount in the bank account at
the relevant time is incorrect or that the petitioner
had rupees Twenty Lacs Forty Thousand (Rs.
20,40,000/-) in his bank account on the day the
application form was filled by him.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
10/72
19. Now the question arises whether the aforesaid
incorrect information, viz., the petitioner having
the said amount in his bank account at the
relevant time can be said to be an instance of
fraud. "Fraud" is a conduct, either by letter or
words, which induces the other person or
authority to take a definite determinative stand as
a response to the conduct of former either by
words or letter. It is also well settled that
negligence is not fraud and can only be treated as
one of the incidence/evidence of fraud.
20. The application form of the petitioner has been
brought on record, which indicates that in Column
14.2 thereof, the petitioner has disclosed that on
the day of making the application form, he had
rupees Twenty Lacs Forty Thousand (Rs.
20,40,000/-) in the Central Cooperative Bank,
Siwan in his bank account No. 014111 and rupees
Sixty Thousand (Rs. 60,000/-) in State Bank of
India, Gardanibagh Branch, in his account No.
20011249138. In view of such categorical
assertion of the financial strength and such
statement having been found to be incorrect on the
reckonable date, it would be nothing less than
making a false statement by the petitioner.
Whether the licence was obtained on such
statement or on other factors may not be required
to be gone into as a wrong statement with respect
to a very material particular fact amounts to
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
11/72
fraud. No Court would unnecessarily find fraud
unless it is distinctly pleaded and proved.
However, if once it is proved, it vitiates the
decision and the Court has no option but to
sustain an order doing away with or setting-aside
such decision.
21. That the petitioner has been able to run his
agency successfully and that in the past, there
were no infrastructural deficiency, would not cure
the defect of a wrong averment in an application
form. Whether the respondent/Corporation has
found such wrong statement having been made by
the petitioner on the complaint of one of its
employees or of its own is not a question which is
relevant. Once the issue was raised, it was only
the petitioner who could have categorically denied
such assertion or proved that his statement in the
application form was correct at the relevant time.
Not having done so and only nitpicking on the
issue of not having been given an opportunity of
cross-examining the two officers of the
Corporation who had furnished a positive field
verification report, the petitioner has done no
good to his cause.
22. From the letter of termination dated 30th
December, 2019, it would appear that a show-
cause notice was issued to the petitioner for two
allegations; one being the submission of
fabricated bank statement to show his financial
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
12/72
stability and the other, submission of false
educational certificate. After perusing the show-
cause reply of the petitioner, the
respondent/Corporation was of the view that the
petitioner had only rupees Two Lacs Forty
Thousand (Rs. 2,40,000/-) balance in his bank
account which too was withdrawn on 07.04.2009.
The allegation with respect to submission of false
educational certificate could not be substantiated
and, therefore, it was not taken into account. The
letter of termination further indicates that Clause
11 of the Selection Guidelines of 29.06.2007 is
applicable to the case of the petitioner as fresh
evaluation of the proposal of the petitioner was
done as per the applicable reconstituted policy.
Clause 11 of the 2007 Guidelines clearly stipulate
that the evaluation of the parameters would be
done on the basis of information given in the
application. On verification, if it is found that the
information given in the application is
incorrect/false/misrepresented, then the
applicant's candidature will stand cancelled and
he will not be eligible for distributorship.
23. With the aforesaid position of facts, it would
be difficult for this Court to interfere with the
decision/order of the respondent/Corporation of
terminating the contract with the petitioner;
notwithstanding that the petitioner has
successfully run the agency for so many years.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
13/72
Any consideration over any other extraneous fact
would amount to perpetuating a position where a
false statement would be given a premium.
24. For the aforesaid reasons, this writ petition is
dismissed."
5. It is a matter of record that in the earlier round of
litigation i.e. in C.W.J.C. no. 559 of 2020, a co-ordinate Bench
of this Court, by the afore-said Judgment dated 22.05.2020, had
however, given liberty to the petitioner to approach the
concerned authority again and seek renewal of the contract on
sympathetic considerations, relevant paragraph Nos. 25 and 26
of the same are being reproduced herein below:-
"25. However, this Court is of the view that in case
no fresh contract for such dealership has been
entered into by the respondent/Corporation with
any third party uptill-now, it would be open for the
petitioner to approach the concerned authority
again and seek a renewal of the contract on
sympathetical considerations, keeping in mind
that the petitioner has carried on the obligation of
a licensee with due diligence for about a decade
by now and for one mistake, he ought not to be
thrown out of the distributorship.
26. Should such a request be made by the
petitioner within a reasonable period of time, it is
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
14/72
only expected that the same shall be considered by
the respondent/ Indian Oil Corporation, if
permissible under the Rules."
6. The petitioner is said to have then filed a representation,
in terms of the aforesaid Judgment dated 22.05.2020, passed in
C.W.J.C. no. 559 of 2020, before the respondent-Corporation,
however the same has been rejected by the impugned order
dated 03.06.2020.
Contentions of the Ld. Counsel for the petitioner
7. At the outset, the learned counsel for the petitioner Sri
Y.S. Lohit has submitted that he is not for a moment canvassing
regarding the termination of the petitioner's Distributorship vide
order dated 30.12.2019 inasmuch as firstly, the challenge to the
said order of termination, made by the petitioner by filing a writ
petition bearing C.W.J.C. no. 559 of 2020, has been rendered
unsuccessful and has failed since the said writ petition has stood
dismissed by a co-ordinate Bench of this Court by a Judgment
dated 22.05.2020 and moreover, the petitioner has sought for a
review of the said Judgment dated 22.05.2020, by filing a
review petition bearing Civil Review no. 79 of 2020, thus, the
learned counsel for the petitioner has submitted that what is
being sought to be challenged before this Court is the impugned
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
15/72
order dated 03.06.2020, which has been passed on the
representation of the petitioner dated 23.05.2020, filed in view
of the liberty granted by a co-ordinate Bench of this Court vide
judgment dated 22.05.2020, passed in C.W.J.C. no. 559 of 2020.
The learned counsel for the petitioner has submitted that the first
issue under consideration in the said order dated 03.06.2020 is
regarding the contention of the petitioner that he has carried out
his obligation as a licensee for about 10 years with due
diligence, to which the respondent-Corporation has replied that
three major penalties dated 07.04.2015, 06.11.2015 and
09.01.2016 have been imposed on the petitioner's
Distributorship in the last 10 years for various irregularities
observed during inspection. In this regard, the learned counsel
for the petitioner has submitted that as far as third major penalty
dated 09.01.2016 is concerned, the same has been withdrawn by
the respondent-Corporation vide letter dated 24.02.2016. As
regards first and second major penalties dated 07.04.2015 and
06.11.2015, it has been submitted that the same have been
challenged before this Court in two writ petitions bearing
C.W.J.C. no. 14935 of 2015 and C.W.J.C. no. 14506 of 2015
and the said two writ petitions are still pending adjudication.
As regards the reply of the respondent-Corporation, in the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
16/72
impugned order dated 03.06.2020, to the effect that on
23.10.2017 a complaint relating to submission of fabricated
Bank statement was received by ER, Vigilance, which on
investigation has been found to be substantiated leading to
termination of Distributorship on 30.12.2019, it has been
submitted that the said complaint dated 23.10.2017 has already
stood closed since the allegations levelled by the complainant
have not been found to be substantiated, as is apparent from the
letter of the respondent-Corporation dated 09.02.2018.
8. Now coming to point no. 2 i.e. the contention of the
proprietor of the petitioner firm to the effect that the Hon'ble
High Court has provided him an opportunity to make a request
for renewal of the contract of his Distributorship, the
respondent-Corporation has stated in reply thereof, in the
impugned order dated 03.06.2020, that the Hon'ble High Court
has also observed in its Judgment dated 22.05.2020 that the
representation of the petitioner has to be considered by the
Corporation, if permissible under the Rules and since the
Distributorship of the petitioner was terminated on 30.12.2019
for violating the terms and conditions of the Distributorship
Agreement, which has already been upheld by the Hon'ble Patna
High Court vide judgment dated 22.05.2020 and there is no rule
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
17/72
of the Corporation which permits renewal of a terminated
Distributorship Agreement on account of violation of the
Agreement's terms and conditions, renewal of the petitioner's
terminated Distributorship Agreement on sympathetic grounds is
not permissible. The learned counsel for the petitioner, on this
issue, has referred to Policy Circular no. SL/1601/2007, issued
by the Indian Oil Corporation, L.P.G. Department, HO dated
03.12.2007, regarding policy guidelines for Resitement, change
of location at L.O.I. stage and renewal of L.P.G. Distributorship.
The learned counsel for the petitioner has referred to Guideline
no. 4 which reads as under:-
"4.0 GUIDELINES FOR REVIVAL:
4.1 Revival of distributorship shall not be allowed
in the following cases :
4.1.1 Distributorships terminated on account
of malpractices/ irregularities/ breach of
Distributorship Agreement/ Violation of
MDG. This will not however come in the
way of consideration of decision on
appeals, which may be made by the
terminated dealership under the
provision of MDG.
4.2 In cases other than 4.1 above (for
reasons beyond the control of the distributor),
depending on the merit of the case, revival with
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
18/72
the same constitution at the same location may
be permitted with the approval of Board of
Directors.
4.3 The distributor may meet the eligibility
criteria for selection of new distributor which
are in vogue at the time of revival.
4.4 The distributor will be required to
deposit the security amount payable to new
distributorships.
4.5 Distributorships inoperative from a date
prior to 01.04.2002 will not be considered for
revival.
4.6 Distributorships remaining inoperative
for a period of more than 03 years will not be
revived."
The learned counsel for the petitioner has thus submitted
that it is wrong on the part of the respondent-Corporation to
have stated in the impugned order dated 03.06.2020 that there is
no rule in the Corporation which permits renewal of a
terminated Distributorship on sympathetic grounds, inasmuch as
the aforesaid guidelines provide for renewal of Distributorship
of the Distributors meeting the eligibility criteria for selection of
a new Distributor, which are in vogue at the time of renewal. It
is further submitted that the exceptions mentioned under
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
19/72
guideline no. 4.1.1 do not cover the case of the petitioner, in as
much as his Distributorship was neither terminated on account
of malpractices nor due to irregularities nor due to breach of
Distributorship Agreement/ violation of M.D.G. It is further
submitted that there has been no breach in the Distributorship
Agreement, inasmuch as the petitioner has been granted
Distributorship only after complying with the guidelines issued
by the respondent-Corporation for selection of Indane (L.P.G.)
Distributors, vide letter dated 29.06.2007, annexed to the present
writ petition as Annexure-2. It is also submitted that the ground
on which the Dealership has been terminated stands falsified by
the letter of the respondent-Corporation dated 09.02.2018, as
aforesaid.
9. Now, coming to point no. 6, wherein the petitioner
has contended that his track record has been excellent for the
past 10 years and one of the Guidelines also prescribes that the
renewal of contract should be done on the basis of the
performance of the Distributor and in reply thereof, the
respondent-Corporation has stated in the impugned order dated
03.06.2020 that renewal of existing Distributorship agreement
between the Distributor and the Corporation is based on
satisfactory performance of the Distributorship until the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
20/72
Distributor breaches any of the terms and conditions of the
agreement, however in the present case, the agreement between
M/s Gauri Shankar Indane Services and the respondent-Oil
Corporation dated 25.10.2016 was terminated on account of
violation of the terms of the Distributorship Agreement, hence
the terminated Distributorship cannot be renewed on
sympathetic grounds, the learned counsel for the petitioner has
submitted that Guideline no. 4 of the Policy Circular no.
SL/1601/2007 dated 03.12.2007 definitely permits revival of
Distributorship.
10. As far as the point no. 9 and 10 are concerned, the
learned counsel for the petitioner has submitted that the same
are matter of records and the reply of the respondent-
Corporation in the impugned letter dated 03.06.2020 does not
require any refutation.
11. Thus, in nutshell, the learned counsel for the
petitioner has submitted that in view of the fact that there has
been no malpractices/ irregularities on the part of the petitioners'
Distributorship nor there has been any breach of agreement by
the petitioner herein and the complaint against the petitioner has
stood closed by the respondent-Corporation by the aforesaid
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
21/72
letter dated 09.02.2018, the petitioner's Distributorship can
definitely be renewed/revived in terms of Guideline no. 4 of the
Policy Circular no. SL/1601/2007 dated 03.12.2007.
12. The learned counsel for the petitioner has relied on
various judgments, citations whereof along with the relevant
paragraphs are being enumerated herein below:-
(I). (2007) 7 SCC 689, Commr., Karnataka
Housing Board v. C. Muddaiah, paragraph Nos. 32
and 33 whereof are reproduced herein below :-
"32. We are of the considered opinion that once
a direction is issued by a competent court, it has
to be obeyed and implemented without any
reservation. If an order passed by a court of law
is not complied with or is ignored, there will be
an end of the rule of law. If a party against
whom such order is made has grievance, the
only remedy available to him is to challenge the
order by taking appropriate proceedings known
to law. But it cannot be made ineffective by not
complying with the directions on a specious plea
that no such directions could have been issued
by the court. In our judgment, upholding of such
argument would result in chaos and confusion
and would seriously affect and impair
administration of justice. The argument of the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
22/72
Board, therefore, has no force and must be
rejected.
33. The matter can be looked at from another
angle also. It is true that while granting a relief
in favour of a party, the court must consider the
relevant provisions of law and issue appropriate
directions keeping in view such provisions. There
may, however, be cases where on the facts and in
the circumstances, the court may issue necessary
directions in the larger interest of justice keeping
in view the principles of justice, equity and good
conscience. Take a case, where ex facie injustice
has been meted out to an employee. In spite of
the fact that he is entitled to certain benefits,
they had not been given to him. His
representations have been illegally and
unjustifiably turned down. He finally approaches
a court of law. The court is convinced that gross
injustice has been done to him and he was
wrongfully, unfairly and with oblique motive
deprived of those benefits. The court, in the
circumstances, directs the authority to extend all
benefits which he would have obtained had he
not been illegally deprived of them. Is it open to
the authorities in such case to urge that as he
has not worked (but held to be illegally
deprived), he would not be granted the benefits?
Upholding of such plea would amount to
allowing a party to take undue advantage of his
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
23/72
own wrong. It would perpetrate injustice rather
than doing justice to the person wronged."
(II). (2008) 7 SCC 788, Atma Linga Reddy v. Union
of India, paragraph Nos. 59 and 60 whereof are
reproduced herein below:-
"59. Before parting with the matter, however, we
are constrained to make one observation at this
stage. The State of Andhra Pradesh has filed its
counter-affidavit in this matter on 31-1-2006.
Before that date, the Tribunal had already been
constituted under the chairmanship of the
Hon'ble Mr Justice Brijesh Kumar, retired Judge
of this Court. The said fact has been duly
mentioned in the affidavit-in-reply. Interim
Application No. 8 of 2006 (for interim relief) and
Interim Application No. 28 of 2006 (for
clarification) were of course subsequent
development to the filing of the affidavit. But
both the applications had been disposed of on
15-11-2006 and on 27-4-2007 respectively. The
present writ petition was heard by us in April
2008 i.e. after substantial period of disposal of
both the applications.
60. We have heard learned counsel for the State
of Andhra Pradesh. No reference whatsoever
was made on behalf of the State either to the
interim applications or to the orders passed
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
24/72
thereon. The contesting respondents referred to
those applications and the orders of the
Tribunal. Respondent 3 is "State" and a public
authority. This Court, therefore, obviously
expects from such authority to place all the facts
before this Court so as to enable the Court to
consider them and to take an appropriate
decision in accordance with law. In our
considered opinion, the third respondent, State
of Andhra Pradesh, in fairness, ought to have
placed all facts subsequent to filing of the
counter-affidavit when the matter was heard by
this Court. The State, however, failed to do so.
But since on other grounds also, we are of the
view that the present petition under Article 32 of
the Constitution is not maintainable and is liable
to be dismissed, no further action is called for."
(III). (2010) 10 SCC 141, Alka Gupta v. Narender
Kumar Gupta, paragraph Nos. 20 to 24 whereof are
reproduced herein below:-
"20. Plea of res judicata is a restraint on the
right of a plaintiff to have an adjudication of his
claim. The plea must be clearly established,
more particularly where the bar sought is on the
basis of constructive res judicata. The plaintiff
who is sought to be prevented by the bar of
constructive res judicata should have notice
about the plea and have an opportunity to put
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
25/72
forth his contentions against the same. In this
case, there was no plea of constructive res
judicata, nor had the appellant-plaintiff an
opportunity to meet the case based on such plea.
21. Res judicata means "a thing adjudicated",
that is, an issue that is finally settled by judicial
decision. The Code deals with res judicata in
Section 11, relevant portion of which is extracted
below (excluding Explanations I to VIII):
"11. Res judicata.--No court shall try any
suit or issue in which the matter directly and
substantially in issue has been directly and
substantially in issue in a former suit between
the same parties, or between parties under
whom they or any of them claim, litigating
under the same title, in a court competent to
try such subsequent suit or the suit in which
such issue has been subsequently raised, and
has been heard and finally decided by such
court."
22. Section 11 of the Code, on an analysis
requires the following essential requirements to
be fulfilled, to apply the bar of res judicata to
any suit or issue:
(i) The matter must be directly and
substantially in issue in the former suit and in
the later suit.
(ii) The prior suit should be between the same
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
26/72
parties or persons claiming under them.
(iii) Parties should have litigated under the
same title in the earlier suit.
(iv) The matter in issue in the subsequent suit
must have been heard and finally decided in
the first suit.
(v) The court trying the former suit must have
been competent to try the particular issue in
question.
23. To define and clarify the principle contained
in Section 11 of the Code, eight Explanations
have been provided. Explanation I states that the
expression "former suit" refers to a suit which
had been decided prior to the suit in question
whether or not it was instituted prior thereto.
Explanation II states that the competence of a
court shall be determined irrespective of whether
any provisions as to a right of appeal from the
decision of such court. Explanation III states
that the matter directly and substantially in issue
in the former suit, must have been alleged by one
party or either denied or admitted expressly or
impliedly by the other party. Explanation IV
provides that:
"Explanation IV.--Any matter which might and
ought to have been made a ground of defence or
attack in such former suit shall be deemed to
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
27/72
have been a matter directly and substantially in
issue in such suit."
The principle of constructive res judicata
emerges from Explanation IV when read with
Explanation III both of which explain the
concept of "matter directly and substantially in
issue".
24. Explanation III clarifies that a matter is
directly and substantially in issue, when it is
alleged by one party and denied or admitted
(expressly or impliedly) by the other.
Explanation IV provides that where any matter
which might and ought to have been made a
ground of defence or attack in the former suit,
even if it was not actually set up as a ground of
attack or defence, shall be deemed and regarded
as having been constructively in issue directly
and substantially in the earlier suit. Therefore,
even though a particular ground of defence or
attack was not actually taken in the earlier suit,
if it was capable of being taken in the earlier
suit, it became a bar in regard to the said issue
being taken in the second suit in view of the
principle of constructive res judicata.
Constructive res judicata deals with grounds of
attack and defence which ought to have been
raised, but not raised, whereas Order 2 Rule 2 of
the Code relates to reliefs which ought to have
been claimed on the same cause of action but not
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
28/72
claimed."
(IV). 1985 Supp SCC 432, B. Prabhakar Rao v. State
of A.P., paragraph No. 12 whereof is reproduced
herein below:-
"12. Before referring to the submissions of the
parties on the principal question of
discrimination and arbitrariness, it is necessary
to ascertain the exact factual situation in regard
to certain other matters, besides those to which
we have already referred. First, in regard to the
question whether the vacancies arising
consequent on the application of the reduced age
of superannuation have been filled and and if
filled, whether they have been filled on a regular
or temporary basis? In Writ Petition 3170 of
1985, a Deputy Secretary to the Government of
Andhra Pradesh speaking for the Government of
Andhra Pradesh, swore to a counter-affidavit in
May 1985 in which he stated that:
"I state with respect to para 8, that it is not
correct to state that only few vacancies have
been filled on temporary basis on the specific
condition of review and revision on the basis
of outcome of the judgment in the writ
petitions filed by the employees due to the
retirement at the age of 55 years pending in
this Hon'ble Court. It is submitted that it is
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
29/72
wholly untrue to say that few vacancies have
been filled up. Consequent on the reduction
in the age of superannuation the Government
took every step to see that most of the
vacancies have been filled up in accordance
with rules on regular basis. It is only in few
cases, temporary promotions have been
effected pending writ petitions. It is submitted
that Annexure I to this counter-affidavit gives
particulars regarding the vacancies that
arose due to the reduction in the age of
retirement on February 28, 1983 and the
vacancies filled up and the vacancies
existing. There are very few vacancies in the
lower echelons. I also submit that the existing
few vacancies are due to administrative
delay, or vacancies that arose latter after
originally filling the vacancies."
In Writ Petitions 5447-5546 of 1985, there was a
complete volte-face and the very same Deputy
Secretary speaking again for the Govern- ment
of Andhra Pradesh said:
"Insofar as the first point is concerned in
none of the cases there were regular
promotions. All the promotions were
officiating/ temporary/ad hoc which would be
clear from orders of promotion, some of
which have been produced by the petitioners
themselves. The promotions were either
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
30/72
subject to the result of the writ petitions then
pending in this Honourable Court
challenging reduction of retirement age from
58 to 55 years, Or some other proceedings
relating to inter se seniority pending either in
this Honourable Court or in the High Court
or in the Administrative Tribunal,Or because
of the pendency of finalisation of seniority
lists and consequent review of promotions
under the States Reorganisation Act. Further
the writ petitions questioning the reduction of
age of retirement from 58 to 55 in GOMs No.
36, dated February 8, 1983 were heard and
judgment was reserved on July 27, 1983.
Since the judgment was reserved, the
judgment was expected at any moment.
Hence the Government were making only
officiating/temporary promotions under Rule
37. Under the circumstances it was not
possible to make regular
appointments/promotions. Therefore, the
petitioners were rightly reverted in
accordance with the directions of the
Honourable Court dated May 6, 1985 and
May 7, 1985. There was no question of either
giving them any notice or hearing before the
orders of the reversion are passed, as in
terms of Rule 37(dd), they could be reverted
without any notice or hearing.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
31/72
Persons holding the posts under Rule 10 have
no right to the posts and the
appointments/promotions were purely
temporary/ad hoc.
Hence, I state that the petitioners continue to
be ad hoc promotees under Rule 37 and not
regular employees as claimed by them."
and:
"Admittedly, the petitioners were promoted
under Rule 37 consequent to the vacancies
which arose due to the retirement of several
persons at the age of 55 years.
The Government never intended to appoint
them on regular basis pending writs and
judgment before the Supreme Court. In case
the promotions were effected regularly legal
complications will set in in the event of the
judgment of the Supreme Court going against
the State Government deliberately made Rule
37 promotions so that in the event of the
judgment going adversely against the State
Government, there may not be any difficulty
in reverting Rule 37 promotees and
reinducting the employees affecting by
GOMs. No. 36 dated February 8, 1983.
Fortunately, the judgment of the Supreme
Court comes in favour of the State
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
32/72
Government."
It is amazing that the same Deputy Secretary
to the Government, representing the same
Government, should have sworn to two such
contradictory affidavits. It reveals a total
sense of irresponsibility and an utter
disregard for veracity. It shows that the
deponent had signed the affidavits without
even reading them or that he signed them to
suit the defence to the particular writ petition
without any regard for truth. In either case, it
is reprehensible and totally unworthy of the
spokesman of a Government and most
unflattering to the Government on whose
behalf he spoke. We would have contemplated
severe action against the deponent, had we
not the feeling that the responsibility for his
statements lies with undisclosed higher
echelons and we need not make a scapegoat
of him. In fact, in a case like this involving
the entire body of government servants in
Andhra Pradesh, we would have expected the
Chief Secretary or a Principal Secretary to
file the counter. But they have chosen to keep
themselves back."
(V). (2005) 6 SCC 776, Punjab SEB Ltd. v. Zora
Singh, paragraph No. 40 whereof is reproduced herein
below :-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
33/72
"40. Furthermore, there cannot be any doubt
whatsoever that even if an order is found to be
not vitiated by reason of malice on fact but still
can be held to be invalid if the same has been
passed for unauthorised purposes, as it would
amount to malice in law."
(VI). (2003) 11 SCC 584, Ashwani Kumar Singh v.
U.P. Public Service Commission, paragraph No. 12
whereof is reproduced herein below:-
"12. Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision is
not proper."
(VII). (1993) 4SCC 10, Rattan Lal Sharma v.
Managing Committee, Dr Hari Ram (Co-Education)
Higher Secondary School, paragraph No. 10 whereof
is reproduced herein below :-
"10. Since the rules of natural justice were not
embodied rules it is not possible and practicable
to precisely define the parameters of natural
justice. In Russell v. Duke of Norfolk [(1949) 1
All ER 109 (CA)] Tucker, L.J. observed:
"... There are, in my view, no words which
are of universal application to every kind of
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
34/72
inquiry and the every kind of domestic
tribunal. The requirements of natural justice
must depend on the circumstances of the
case, the nature of the inquiry, the rules
under which the tribunal is acting, the
subject-matter that is being dealt with, and so
forth."
It has been observed by this Court in Union of
India v. P.K. Roy [(1968) 2 SCR 186 : AIR 1968
SC 850 : (1970) 1 LLJ 633] :"The extent and
application of the doctrine of natural justice
cannot be imprisoned within the strait-jacket of
a rigid formula. The application of the doctrine
depends upon the nature of the jurisdiction
conferred on the administrative authority, upon
the character of the rights of the persons
affected, the scheme and policy of the statute and
other relevant circumstances disclosed in the
particular case."
Similar view was also expressed in A.K. Kraipak
case [(1969) 2 SCC 262 : (1970) 1 SCR 457] .
This Court observed: (SCC pp. 272-73, para 20)
"... What particular rule of natural justice
should apply to a given case must depend to
a great extent on the facts and circumstances
of that case, the framework of the law under
which the enquiry is held and the constitution
of the Tribunal or body of persons appointed
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
35/72
for that purpose. Whenever a complaint is
made before a court that some principle of
natural justice had been contravened, the
court has to decide whether the observance
of that rule was necessary for a just decision
on the facts of that case."
Prof. Wade in his Administrative Law has
succinctly summarised the principle of natural
justice to the following effect:
"It is not possible to lay down rigid rules as
to when the principles of natural justice are
to apply: not as to their scope and extent.
Everything depends on the subject-matter, the
application for principles of natural justice,
resting as it does upon statutory implication,
must always be in conformity with the scheme
of the Act and with the subject-matter of the
case. In the application of the concept of fair
play there must be real flexibility. There must
also have been some real prejudice to the
complainant; there is no such thing as a
merely technical infringement of natural
justice. The requirements of natural justice
depend on the facts and the circumstances of
the case, the nature of the enquiry, the rules
under which the tribunal is acting, the
subject-matter to be dealt with, and so forth."
One of the cardinal principles of natural justice
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
36/72
is nemo debet esse judex in propria causa (no
10. Since the rules of natural justice were not
embodied rules it is not possible and practicable
to precisely define the parameters of natural
justice. In Russell v. Duke of Norfolk [(1949) 1
All ER 109 (CA)] Tucker, L.J. observed: "...
There are, in my view, no words which are of
universal application to every kind of inquiry
and the every kind of domestic tribunal. The
requirements of natural justice must depend on
the circumstances of the case, the nature of the
inquiry, the rules under which the tribunal is
acting, the subject-matter that is being dealt
with, and so forth."
It has been observed by this Court in Union of
India v. P.K. Roy [(1968) 2 SCR 186 : AIR 1968
SC 850 : (1970) 1 LLJ 633] :
"The extent and application of the doctrine of
natural justice cannot be imprisoned within
the strait-jacket of a rigid formula. The
application of the doctrine depends upon the
nature of the jurisdiction conferred on the
administrative authority, upon the character
of the rights of the persons affected, the
scheme and policy of the statute and other
relevant circumstances disclosed in the
particular case."
Similar view was also expressed in A.K. Kraipak
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
37/72
case [(1969) 2 SCC 262 : (1970) 1 SCR 457] .
This Court observed: (SCC pp. 272-73, para 20)
"... What particular rule of natural justice
should apply to a given case must depend to
a great extent on the facts and circumstances
of that case, the framework of the law under
which the enquiry is held and the constitution
of the Tribunal or body of persons appointed
for that purpose. Whenever a complaint is
made before a court that some principle of
natural justice had been contravened, the
court has to decide whether the observance
of that rule was necessary for a just decision
on the facts of that case."
Prof. Wade in his Administrative Law has
succinctly summarised the principle of natural
justice to the following effect:
"It is not possible to lay down rigid rules as
to when the principles of natural justice are
to apply: not as to their scope and extent.
Everything depends on the subject-matter, the
application for principles of natural justice,
resting as it does upon statutory implication,
must always be in conformity with the scheme
of the Act and with the subject-matter of the
case. In the application of the concept of fair
play there must be real flexibility. There must
also have been some real prejudice to the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
38/72
complainant; there is no such thing as a
merely technical infringement of natural
justice. The requirements of natural justice
depend on the facts and the circumstances of
the case, the nature of the enquiry, the rules
under which the tribunal is acting, the
subject-matter to be dealt with, and so forth."
One of the cardinal principles of natural justice
is nemo debet esse judex in propria causa (no
man shall be a judge in his own cause). The
deciding authority must be impartial and without
bias. It has been held by this Court in Secretary
to Government, Transport
Department v. Munuswamy Mudaliar [1988
Supp SCC 651] that a predisposition to decide
for or against one party without proper regard to
the true merits of the dispute is bias. Personal
bias is one of the three major limbs of bias
namely pecuniary bias, personal bias and
official bias. A classic case of personal bias was
revealed in the decision of this Court in State of
U.P. v. Mohd. Nooh [1958 SCR 595 : AIR 1958
SC 86] . In the said case, a departmental inquiry
was held against an employee. One of the
witnesses against the employee turned hostile.
The officer holding the inquiry then left the
inquiry, gave evidence against the employee and
thereafter resumed to complete the inquiry and
passed the order of dismissal. This Court
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
39/72
quashed the order of dismissal by holding inter
alia that the rules of natural justice were
grievously violated.man shall be a judge in his
own cause). The deciding authority must be
impartial and without bias. It has been held by
this Court in Secretary to Government,
Transport Department v. Munuswamy
Mudaliar [1988 Supp SCC 651] that a
predisposition to decide for or against one party
without proper regard to the true merits of the
dispute is bias. Personal bias is one of the three
major limbs of bias namely pecuniary bias,
personal bias and official bias. A classic case of
personal bias was revealed in the decision of this
Court in State of U.P. v. Mohd. Nooh [1958 SCR
595 : AIR 1958 SC 86] . In the said case, a
departmental inquiry was held against an
employee. One of the witnesses against the
employee turned hostile. The officer holding the
inquiry then left the inquiry, gave evidence
against the employee and thereafter resumed to
complete the inquiry and passed the order of
dismissal. This Court quashed the order of
dismissal by holding inter alia that the rules of
natural justice were grievously violated."
(VIII). (1995) 3 SCC 757, Dhananjay Sharma v.
State of Haryana, paragraph No. 38 whereof is
reproduced herein below:-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
40/72
"38. Section 2(c) of the Contempt of Courts Act,
1971 (for short the Act) defines criminal
contempt as "the publication (whether by words,
spoken or written or by signs or visible
representation or otherwise) of any matter or the
doing of any other act whatsoever to (1)
scandalise or tend to scandalise or lower or tend
to lower the authority of any court; (2) prejudice
or interfere or tend to interfere with the due
course of judicial proceedings or (3) interfere or
tend to interfere with, or obstruct or tend to
obstruct the administration of justice in any
other manner. Thus, any conduct which has the
tendency to interfere with the administration of
justice or the due course of judicial proceedings
amounts to the commission of criminal contempt.
The swearing of false affidavits in judicial
proceedings not only has the tendency of causing
obstruction in the due course of judicial
proceedings but has also the tendency to impede,
obstruct and interfere with the administration of
justice. The filing of false affidavits in judicial
proceedings in any court of law exposes the
intention of the party concerned in perverting
the course of justice. The due process of law
cannot be permitted to be slighted nor the
majesty of law be made a mockery of by such
acts or conduct on the part of the parties to the
litigation or even while appearing as witnesses.
Anyone who makes an attempt to impede or
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
41/72
undermine or obstruct the free flow of the
unsoiled stream of justice by resorting to the
filing of false evidence, commits criminal
contempt of the court and renders himself liable
to be dealt with in accordance with the Act.
Filing of false affidavits or making false
statement on oath in courts aims at striking a
blow at the rule of law and no court can ignore
such conduct which has the tendency to shake
public confidence in the judicial institutions
because the very structure of an ordered life is
put at stake. It would be a great public disaster if
the fountain of justice is allowed to be poisoned
by anyone resorting to filing of false affidavits or
giving of false statements and fabricating false
evidence in a court of law. The stream of justice
has to be kept clear and pure and anyone soiling
its purity must be dealt with sternly so that the
message percolates loud and clear that no one
can be permitted to undermine the dignity of the
court and interfere with the due course of
judicial proceedings or the administration of
justice. In Chandra Shashi v. Anil Kumar Verma
[(1995) 1 SCC 421 : 1995 SCC (Cri) 239] the
respondents produced a false and fabricated
certificate to defeat the claim of the respondent
for transfer of a case. This action was found to
be an act amounting to interference with the
administration of justice. Brother Hansaria, J.
speaking for the Bench observed: (SCC pp. 423-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
24, paras 1 and 2)
"The stream of administration of justice has
to remain unpolluted so that purity of court's
atmosphere may give vitality to all the organs
of the State. Polluters of judicial firmament
are, therefore, required to be well taken care
of to maintain the sublimity of court's
environment; so also to enable it to
administer justice fairly and to the
satisfaction of all concerned.
Anyone who takes recourse to fraud deflects
the course of judicial proceedings; or if
anything is done with oblique motive, the
same interferes with the administration of
justice. Such persons are required to be
properly dealt with, not only to punish them
for the wrong done, but also to deter others
from indulging in similar acts which shake
the faith of people in the system of
administration of justice."
(IX). (2007) 14 SCC 108, Deepa Gourang
Murdeshwar Katre v. V.A.V. College of Arts,
paragraph Nos. 33 and 34 whereof are reproduced
herein below:-
"33. It is well settled by a catena of decisions of
this Court that if a case of fraud or
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
misrepresentation of such a dimension is
discovered that the very basis of the order
passed by a court of law is affected, the court
can recall its order. The power to recall an order
founded upon fraud and misrepresentation is an
inherent power of the court.
34. The present case is one such instance where
the High Court has been misled by incorrect
representations made by the University at the
time of hearing of the writ petition and the
review petition. The question was whether the
post occupied by the appellant was entitled to be
dereserved as for six years no Backward Class
candidate was available."
(X). (2002) 6 SCC 308, State of Bihar v. Radha
Krishna Jha (Dr), paragraph Nos. 8 to 10 whereof are
reproduced herein below:-
"8. The learned counsel appearing for the State
of Bihar has also tried to submit that the
decision of the Supreme Court relied upon by the
learned Single Judge in the first writ petition No.
387 of 1995 pertained to Technical Institute of
West Bengal and that case has no application to
the present case. But we find that the matter was
examined and the learned Single Judge in writ
petition CWJC No. 387 of 1995 had
categorically held that the Division Bench
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
decision of the Patna High Court in the case of
Sindeshwari Prasad Singh [ CWJC No. 522 of
1979, decided on 2-7-1980 (Pat) (DB)] and that
of the Supreme Court applied to the case in hand
and a direction was issued to decide the
representation in the light of those decisions. So
for as the decision in CWJC No. 387 of 1995 is
concerned, it does not appear to have been
challenged and therefore had attained finality.
We find force in the submission made on behalf
of the Lab Assistants that in case the State
wanted to take a stand that the decisions of the
Supreme Court and that of the Patna High Court
in the case of Sindeshwari Prasad Singh [ CWJC
No. 522 of 1979, decided on 2-7-1980 (Pat)
(DB)] did not apply to the facts of the present
case, they could not say so by means of an
administrative order passed on their
representation in the teeth of the judicial finding
in the judgment of the learned Single Judge
dated 7-9-1995 in CWJC No. 387 of 1995 that
the said two decisions had full application to the
present case. But the only way open to the State
was to challenge the abovesaid order before an
appropriate forum. We also find that the
contempt petition filed by the Lab Assistants also
seems to have been decided taking a view that
the order passed by the State Government on the
representation was not in keeping with the
direction issued by the learned Single Judge in
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
the first writ petition. That order also does not
seem to have been challenged. Another
opportunity provided to the State to decide the
representation culminated in repetition of the
same exercise in rejecting the representation
without following the two judgments in the light
of which representation was directed to be
decided. The plea raised by the State of Bihar on
the basis of the judgment in CWJC No. 9485 of
1995 decided on 13-8-1996 [ CWJC No. 9485 of
1996, dated 13-8-1996 (Pat)] saying that Lab
Assistants could not be upgraded as
Demonstrators will make no difference so far as
the present case is concerned. As a matter of
fact, the latter decision dated 13-8-1996 should
have followed the earlier decision dated 7-9-
1995 which on the other hand was distinguished
saying that the Government had to take a
decision in the matter. In case the earlier case
namely CWJC No. 387 of 1995 decided on 7-9-
1995 stood distinguished, it would not be open
to the State to argue that it would come in the
way of implementing the order passed by the
High Court dated 7-9-1995 in CWJC No. 387 of
1995. The latter order does not in any manner
affect the finality of the order passed on 7-9-
1995. The State was thus left with no option but
to decide the representation following the two
decisions referred to in the order dated 7-9-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
1995.
9. So far as the question of the abolition of the
post of "Demonstrator" is concerned,
admittedly no counter-affidavit had been filed on
behalf of the State bringing this fact to the notice
of the Court deciding CWJC No. 387 of 1995.
10. That judgment was allowed to have attained
finality. It was only in reply to the contempt
proceedings initiated by the Lab Assistants that
the notification of 1975 was pressed into service
to say that only those Lab Assistants who were
appointed prior to 1-1-1973 alone could be
designated as Demonstrators and not those
appointed thereafter whose services were to be
terminated. On behalf of the Lab Assistants, it
has been vehemently urged that even after
issuance of the order of 1975, a number of Lab
Assistants had been redesignated as
Demonstrators in different years. Some
documents are on the record to indicate such
redesignations in the years 1981, 1983 and in
1988 with certain conditions about non-
admissibility of emoluments. On the basis of
these specific orders redesignating Lab
Assistants as Demonstrators, it is submitted that
the order of 1975 was never acted upon and in
different colleges Lab Assistants were designated
as Demonstrators. It is also submitted that there
is nothing to indicate that in pursuance of the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
aforesaid order of 1975, services of anyone may
have ever been terminated. The State could not
deny the aforesaid facts, however, the stand is
that the orders issued from time to time
designating Lab Assistants as Demonstrators
were wrongly issued. But, surprisingly, it is to be
found that no step was ever taken to set the
wrong right except at a very late stage. Same
orders are now said to have been issued which
according to the other side have not been
implemented. Learned Single Judge in the
second writ petition namely CWJC No. 2176 of
1996 (R) has noticed that in CWJC No. 522 of
1979 (R) a similar question had arisen and
ultimately an order was passed for redesignating
Laboratory Assistants as Demonstrators in the
scale of pay as per UGC norms. The case related
to graduate Laboratory Assistants of
Muzaffarpur Institute of Technology and the case
was duly contested on behalf of the State
Government. It could not be indicated on behalf
of the State as to what material difference it
would make by reason of the fact that in the case
in hand they are Lab Assistants/Lab Instructors
etc. under Ranchi University and not in the labs
of Technical Institutes. Both are governed by the
norms of UGC. It would have been only
appropriate if all these pleas had been raised, if
at all, including one about abolition of posts of
Demonstrators in Writ Petition No. 387 of 1995
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
as they involve disputed facts as to whether
order of 1975 was ever acted upon or not etc.
That was not done nor was any appeal preferred.
Presently dispute is confined to compliance with
the order passed in Writ Petition No. 387 of
1995 and thereafter in contempt proceedings."
(XI). (1989) 4 SCC 187, Supreme Court Employees'
Welfare Assn. v. Union of India, paragraph No. 106
whereof, is reproduced herein below:-
"106. An act is ultra vires either because the
authority has acted in excess of its power in the
narrow sense, or because it has abused its power
by acting in bad faith or for an inadmissible
purpose or on irrelevant grounds or without
regard to relevant considerations or with gross
unreasonableness: see the principle stated by
Lord Greene M.R. in Associated Provincial
Picture Houses Ltd. v.Wednesbury Corporation
[(1947) 2 All ER 680, 685] . Power is exercised
in bad faith where its repository is motivated by
personal animosity towards those who are
directly affected by its exercise. Power is no less
abused even when it is exercised in good faith,
but for an unauthorised purpose or on irrelevant
grounds, etc. As stated by Lord Macnaghten
inWestminster Corporation v. London and North
Western Railway Co.[1905 AC 426, 430] :
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
"It is well settled that a public body invested
with statutory powers such as those conferred
upon the corporation must take care not to
exceed or abuse its powers. It must keep
within the limits of the authority committed to
it. It must act in good faith. And it must act
reasonably. The last proposition is involved
in the second, if not, in the first."
This principle was restated by this Court in
Barium Chemicals Ltd. v. Company Law Board
[AIR 1967 SC 295 at 323] :
"Even if (the statutory order) is passed in
good faith and with the best of intention to
further the purpose of the legislation which
confers the powers, since the Authority has to
act in accordance with and within the limits
of that legislation, its order can also be
challenged if it is beyond those limits or is
passed on grounds extraneous to the
legislation or if there are no grounds at all
for passing it or if the grounds are such that
no one can reasonably arrive at the opinion
or satisfaction requisite under the legislation.
In any one of these situations it can well be
said that the authority did not honestly form
its opinion or that in forming it, it did not
apply its mind to the relevant facts."
(XII). A.I.R. 2020 SC 3050, Benedict Denis Kinny vs
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
Tulip Brian Miranda, paragraph No. 20 whereof, is
reproduced herein below:-
"20. We need to first notice the nature and extent
of the jurisdiction of the High Court under Article
226 of the Constitution of India. The power of
judicial review vested in the High Courts under
Article 226 and this Court under Article 32 of the
Constitution is an integral and essential feature
of the Constitution and is basic structure of our
Constitution. The jurisdiction under Article 226 is
original, extraordinary and discretionary. The
look out of the High Court is to see whether
injustice has resulted on account of any decision
of a constitutional authority, a statutory
authority, a tribunal or an authority within
meaning of Article 12 of the Constitution. The
judicial review is designed to prevent cases of
abuse of power or neglect of a duty by the public
authority. The jurisdiction under Article 226 is
used for enforcement of various rights of the
public or to compel public/statutory authorities
to discharge the public functions entrusted on
them. The Courts are guardians of the rights and
liberties of the citizen and they shall fail in their
responsibility if they abdicate their solemn duty
towards the citizens. The scope of Article 226 is
very wide and can be used to remedy injustice
wherever it is found. The High Court and
Supreme Court are the Constitutional Courts,
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
which have been conferred right of judicial
review to protect the fundamental and other
rights of the citizens. Halsbury's Laws of
England, Fifth Edition, Volume 24 dealing with
the nature of the jurisdiction of superior and
inferior courts stated that no matter is deemed to
be beyond the jurisdiction of a superior court
unless it is expressly shown to be so. In
paragraph 619, Halsbury's Laws of England
States:-
"The chief distinctions between superior
and inferior courts are found in
connection with jurisdiction. Prima facie,
no matter is deemed to be beyond the
jurisdiction of a superior court unless it is
expressly shown to be so, while nothing is
within the jurisdiction of an inferior court
unless it is expressly shown on the face of
the proceedings that the particular matter
is within the cognizance of the particular
court. An objection to the jurisdiction of
one of the superior courts of general
jurisdiction must show what other court
has jurisdiction, so as to make it clear that
the exercise by the superior court of its
general jurisdiction is unnecessary. The
High Court, for example, is a court of
universal jurisdiction and
superintendency in certain classes of
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
claims, and cannot be deprived of its
ascendancy by showing that some other
court could have entertained the
particular claim.""
13. Last but not the least, the learned counsel for the
petitioner has submitted that the issue regarding the fairness of
selection process and award of L.P.G. distributorship by the
respondent-Corporation to Late Gauri Shanker Pandey has also
been set at rest, inasmuch a writ petition bearing C.W.J.C. no.
1190 of 2009, which was filed by one Vishwanath Tiwary,
challenging the selection process emanating out of an
advertisement dated 17.10.2017 inviting applications from
eligible candidates under the Freedom Fighter category leading
to issuance of L.O.I. to the deceased father of the proprietor of
the petitioner firm, has also stood dismissed long back by an
order dated 25.03.2010 passed by a co-ordinate Bench of this
Court, wherein it has been noted that upon due investigation, 18
marks were added to the marks already awarded to Sri Gauri
Shankar Pandey which had resulted in him being placed at No. 1
in the merit list and the final decision of the respondent-
Corporation does not warrant any interference. Thus it is
submitted that the respondent-Corporation could not have raised
the issue regarding the fulfilment of the eligibility criteria by the
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
petitioner again.
Contentions of the Ld. Sr. Counsel for the
respondents
14. Per contra, the learned Senior counsel appearing for the
respondent-Oil Corporation has submitted that the petitioner had
earlier filed a writ petition challenging the order of termination
of Distributorship Agreement dated 30.12.2019, however the
same has stood dismissed by a judgment dated 22.05.2020 and
the Hon'ble High Court in the said judgment has observed as
follows:-
"any consideration over any other extraneous fact
would amount to perpetuating a position where a
false statement would be given premium."
Thus it is submitted that there is no question of
entertaining the request of the petitioner for restoration of his
terminated Distributorship Agreement. It is further submitted
that the representation of the petitioner dated 23.05.2020 has
been duly considered by the respondent no. 2 and has been
rejected by a detailed, reasoned and a self-speaking order dated
03.06.2020, wherein it has been clearly recorded that the
Vigilance Cell of the respondent-Corporation had received a
complaint that the petitioner had secured his selection and
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
appointment on the basis of fabricated Bank documents, which
had stood substantiated leading to termination of the agreement
in question and the said order of termination passed by the
respondent-Corporation has also been upheld by the Hon'ble
High Court. It is further submitted that there is no provision to
renew such terminated contracts. The learned counsel for the
respondent-Corporation has further submitted that in order to
extend opportunity and help the Freedom Fighters, applications
had been solicited from the Freedom Fighters for allotment of
L.P.G. Distributorship, in pursuance whereof the father of Sri
Ravi Pandey had applied and was selected, whereafter Letter of
Intent dated 30.10.2008 was issued to him, however he died on
the very next day i.e. on 31.10.2008. The proprietor of the
petitioner's Distributorship had then sought for a re-
consideration by way of substitution of the name of the deceased
with that of his legal heirs and the same was allowed in terms of
Clause 2.3 of the Re-constitution Policy of the year 2008. It is
also submitted that the proprietor of the petitioner firm had in
fact filed an application dated 17.02.2009 for re-consideration of
the Distributorship in question, in which he had mentioned his
educational qualification and financial capability under Para
14.2 and had stated that he was having a sum of Rs. 20,40,000/-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
in his Bank Account no. 014111, being maintained at the Central
Co-operative Bank, Siwan. A fresh merit penal dated 26.02.2009
was then published in which the petitioner had stood first since
he had got maximum marks under the financial capability
criteria. During field verification, the petitioner is stated to have
produced a copy of pass-book and certificates dated 14.02.2009
and 09.03.2009, purportedly issued by the Branch Manager of
the Bank to the effect that the petitioner was having a balance of
Rs. 20,40,000/- in his account in the Central Co-operative Bank,
Siwan on the date of application and the said balance had been
maintained till the date of interview and on the basis of these
documents, the Officers conducting field verification had
submitted a report recommending for issuance of Letter of
Intent to the proprietor of the petitioner firm.
15. The learned counsel for the respondent-Corporation has
further submitted that a complaint was received to the effect that
the proprietor of the petitioner firm Sri Ravi Pandey had
procured the distributorship on the basis of forged documents i.e
fabricated bank details and false educational certificates. At first
the complaint was closed on the basis of the FVC report,
however a similar complaint was then received by the Vigilance
department of the IOCL, whereafter investigation was made and
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
letters were written to the Bank to confirm as to whether the
statements, Bank's Passbook and Bank's certificates dated
14.02.2009 and 09.03.2009, produced by Sri. Ravi Pandey at the
time of FVC showing a balance of Rs. 20,40,000/- in the bank
account no. 014111, kept at the Central Cooperative Bank,
Siwan are correct or not and as to whether the Bank's
documents/certificates produced by Sri Ravi Pandey have been
issued by the Bank or not. The IOCL had then confronted Sri
Ravi Pandey but he could not produce the original passbook and
instead stated that the same was stolen in year 2011. It is stated
that the Bank had then informed the respondent-Corporation that
the balance in the afore-said account was to the tune of
Rs. 2,40,000/- as on 14.02.2009, the certificates dated
14.02.2009 and 09.03.2009 and the passbook provided by Sri.
Ravi Pandey at the time of selection had not been issued by the
Bank, which clearly shows that Sri Ravi Pandey had secured his
selection on the basis of forged documents in as much as he
could have been awarded only 2.4 marks for a balance of Rs.
2,40,000/- in his Bank account whereas minimum balance of a
sum of Rs. 18,00,000/- was required to get full marks i.e 18
marks. It is submitted that as far as complaint regarding Sri.
Ravi Pandey having produced false educational certificates is
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
concerned, the same was not substantiated. Consequently, it was
found that the Sri Ravi Pandey, proprietor of the petitioner firm,
had made false statement in his application dated 17.02.2009,
had produced false certificates and bank details to ensure his
selection, hence had violated the terms of selection as contained
in clause 11 of the Distributorship Selection Guidelines dated
29.06.2007 as well as had committed breach of clause no. 27 (1)
of the distributorship agreement dt. 25.10.2016. Clause 11 of the
Distributorship Selection Guidelines dated 29.06.2007 stipulates
that if upon verification it is found that the information given in
application is incorrect/false/ misrepresented then the applicant's
candidature will stand cancelled. Further, clause 27(1) of the
distributorship agreement dated 25.10.2016, signed between the
proprietor of the petitioner firm and the IOCL reads as follows:-
"Notwithstanding anything to the contrary herein
contained, the Corporation shall also be at liberty
at its entire discretion to terminate this agreement
forthwith upon or at anytime after the happening
of any of the following events namely:-
(1) If any information given by the distributor in
his application for appointment as a distributor
shall be found to be untrue or incorrect in any
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
material particular."
Thus, a detailed show-cause notice dated 29.08.2019 was
served upon the petitioner and the petitioner was called upon to
submit a reply/explanation along with supporting documents by
16.09.2019, as to why his distributorship be not terminated for
violating clause 11 of the selection guidelines dated 29.06.2007
and clause 27 (1) of the distributorship agreement dated
25.10.2016. The petitioner had then challenged the said notice
dated 29.08.2019 before this Hon'ble court by filing a writ
petition bearing CWJC No. 18839 of 2019, however the same
was dismissed by a co-ordinate Bench of this Court by an order
dated 16.09.2019. Then the petitioner had appeared before the
concerned authority and submitted his reply, whereafter the
General Manager, LPG, BSO had thoroughly considered the
reply of the petitioner as also the points raised by him at the
time of hearing and had passed a detailed, reasoned and a
speaking order dated 30.12.2019, whereby and whereunder, the
distributorship agreement of the petitioner firm was terminated.
The said order dated 30.12.2009 was challenged by the
petitioner firm by filing a writ petition bearing CWJC No. 559
of 2020 and a plea was taken that documents were not provided
by the IOCL, hence the said order dated 30.12.2009 is bad. The
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
respondent-Corporation, in its supplementary counter affidavit,
filed in the said writ proceedings, had annexed the documents
with a list thereof and its receiving showing that the petitioner
was given the documents he had demanded save and except the
opinion of Mr. Kishpotta. After considering the pleadings and
arguments of parties, a co-ordinate Bench of this Hon'ble court
had dismissed the aforesaid writ petition bearing CWJC No. 559
of 2020, by a Judgment dated 22.05.2020, however granting
liberty to the petitioner to represent before the respondent-
Corporation for renewal of the contract on sympathetic
considerations, if the rules permit. It is stated that, thereafter the
petitioner had represented before the competent authority and
the said representation has been duly considered and rejected by
a reasoned order dated 30.12.2009. It is also submitted that the
petitioner has got no right to be reinstated as a distributor since
there are no rules/guidelines, which provide for renewal of
agreement in cases of termination of agreement on account of
violation of terms of selection and agreement.
16. The learned counsel for the respondent-Corporation has
also submitted that all the points raised by the petitioner in his
reply to the show cause notice dated 29.08.2019, have been
considered and a detailed, reasoned and a speaking order dated
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
30.12.2019 has been passed, whereby and whereunder the
Distributorship Agreement of the petitioner has been terminated
and the same has also been upheld by a judgment dated
22.05.2020, passed by a co-ordinate Bench of this Court in
C.W.J.C. no. 559 of 2020, thus the challenge of the petitioner to
the order of termination has also failed. It is further submitted
that this Court in the earlier round of litigation had granted
liberty to the petitioner to file a representation before the
respondent Corporation and seek renewal of the contract on
sympathetic considerations, however the Hon'ble Court had
specifically stated therein that the same should be considered by
the respondent-Corporation, if permissible under the Rules and
since there is no rule for restoration of the terminated
Distributorship Agreement on sympathetic considerations, there
is no error in the impugned order dated 03.06.2020 and the
present writ petition is fit to be dismissed, specially in view of
the fact that even if Clause 4.0 of the aforesaid Guidelines of the
respondent-Corporation dated 03.12.2007 are taken into
consideration, the case of the petitioner would be hit by Clause
4.1 thereof, resulting in his case falling under the exception
Clause.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
Determination
17. I have heard the learned counsel for the parties and
perused the materials on record as also gone through the
judgments cited and relied upon by the learned counsel for the
petitioner. This Court finds that initially the Distributorship in
question was granted in favour of Late Gauri Shanker Pandey
vide Letter of Intent dated 30.10.2008, however unfortunately,
he died on the very next date i.e. on 31.10.2008, whereafter the
proprietor of the petitioner herein had submitted his application
dated 17.02.2009 under the Re-Constitution Policy of the
respondent-Corporation, whereupon L.O.I. was issued in favour
of the proprietor of the petitioner firm vide letter dated
08.04.2009 and an agreement was executed in between the
petitioner and the respondent-Corporation on 07.09.2009. It is a
matter of record that the said agreement was further renewed for
a period of 05 years and a renewal agreement was executed on
25.10.2016. It appears that subsequently, a complaint was filed
against the petitioner inter-alia alleging therein that the
proprietor of the petitioner firm had furnished false certificates
and Bank details along with his application dated 17.02.2009. It
also appears that a complaint was also received by the Vigilance
Department of the respondent-Corporation, whereupon
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
investigation was made and letter was written to the Bank in
question to confirm as to whether the statements in the Bank's
pass-book and the certificates dated 14.02.2009 and 09.03.2009,
purportedly issued by the said Bank at the time of field
verification showing a balance of Rs. 20,40,000/- in the Bank
Account no. 014111 of the proprietor of the petitioner firm, kept
with the Central Co-operative Bank, Siwan, is correct or not and
in response thereof, the said Bank confirmed that in the said
account there was a balance of only Rs. 2,40,000/- as on
14.02.2009 and moreover, the certificates dated 14.02.2009 and
09.03.2009 as also the pass-book provided by the proprietor of
the petitioner firm at the time of selection, had not been issued
by the said Bank. Thus, it transpired that the proprietor of the
petitioner firm had submitted forged documents and made
wrong and false statement in his application, with regard to his
financial status, with the aim and object of securing maximum
marks of 18 whereas he was entitled only for 2.4 marks. In such
view of the matter, the respondent-Corporation had issued a
show cause notice dated 29.08.2019 to the proprietor of the
petitioner firm and after considering his reply, had terminated
the Distributorship Agreement of the petitioner vide order dated
30.12.2019 on account of violation of the terms of selection by
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
the petitioner as contained in Clause 11 of the Distributorship
Selection Guidelines dated 29.06.2007, which provides that in
case, any information given in the application for selection is
found incorrect/ false or there has been a mis-representation
then the candidature of the applicant shall stand cancelled, as
well as in violation of Clause 27 (1) of the Distributorship
agreement dated 25.10.2016, which stipulates that the
Corporation is at liberty in its entire discretion to terminate the
agreement, in case any information given by the Distributor in
his application is found to be untrue, hence since the proprietor
of the petitioner firm had furnished incorrect and false
information regarding his financial status, the Distributorship
Agreement in question was terminated on account of breach of
the terms and conditions of the Distributorship Agreement. The
said order of termination dated 30.12.2019 was challenged by
the petitioner in C.W.J.C. No. 559 of 2020, however the said
writ petition was dismissed by the aforesaid Judgment dated
22.05.2020, passed by a co-ordinate Bench of this Court,
however liberty was granted to the petitioner to file a
representation before the respondent-Corporation for renewal of
the contract on sympathetic consideration, however the
respondent-Corporation was directed to consider the same, if
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
permissible under the Rules. The petitioner is stated to have
filed a representation dated 23.05.2020, however the same has
been rejected by the respondent Corporation by the impugned
order dated 03.06.2020, which has been challenged in the
present proceedings.
18. Taking up the first issue regarding imposition of three
penalties on the petitioner's Distributorship, as has been stated at
Sl. No. 1 of the chart in the impugned order dated 03.06.2020,
this Court finds that though the third major penalty has been
withdrawn, nonetheless the first two major penalties dated
07.04.2015 and 06.11.2015 still stand as on date, since the same
have though been challenged in various writ petitions, as
referred to hereinabove, however the same have not been
quashed till date. Thus, this Court does not find any infirmity in
the reply of the respondent-Corporation to the contention raised
by the petitioner at serial no. 1 of the impugned order dated
03.06.2020 since the first and second major penalties have not
been interfered with / quashed till date.
19. As far as the reply of the respondent-Corporation in the
impugned order dated 03.06.2020 to the effect that complaint
dated 23.10.2017 regarding submission of fabricated Bank
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
statement by the petitioner was received by the Vigilance
Department of the respondent-Corporation which on
investigation has been found to be substantiated, leading to
termination of Distributorship on 30.12.2019, is concerned, this
Court finds that the said issue has already stood determined by a
co-ordinate Bench of this Court by a Judgment dated 22.05.2020
passed in C.W.J.C. No. 559 of 2020 whereby and whereunder
the order of termination of Distributorship dated 30.12.2019 has
been found to be legal and valid. In fact, the allegation of the
proprietor of the petitioner firm having submitted fabricated
Bank documents in support of his financial status has also been
found, upon investigation, to be true. As far as the contention of
the learned counsel for the petitioner to the effect that the said
complaint received by the Vigilance had stood closed which is
apparent from the letter of the respondent-Corporation dated
09.02.2018, is concerned, this Court finds that the complaint
received by the Vigilance is dated 23.10.2017, however the
subject referred to in the afore-said letter of the respondent-
Corporation dated 09.02.2018 is with regard to the complaint
dated 23.01.2018 and moreover the said letter dated 09.02.2018
would not have any bearing on the present case, inasmuch as a
co-ordinate Bench of this Court vide judgment dated
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
22.05.2020, passed in the case of the petitioner itself, has
already come to a conclusion that fabricated Bank statement had
been submitted by the petitioner and lastly, the said letter dated
09.02.2018 refers to field verification conducted in the month of
March 2009, which admittedly was done on the basis of
fabricated Bank statement and forged certificates submitted by
the proprietor of the petitioner firm along with his application
dated 17.02.2009, however subsequently, upon a detailed
inquiry made and response sought from the Bank in question, it
has transpired that the respondent-Bank had never issued the
pass-book submitted by the proprietor of the petitioner firm or
the certificates dated 14.02.2009 and 09.03.2009 as also has
certified that the balance amount in the account of the proprietor
of the petitioner firm as on 14.02.2009 was only a sum of Rs.
2,40,000/- and the said amount had continued to be available in
the Bank account of the proprietor of the petitioner firm till the
date of interview, however the claim of the proprietor of the
petitioner firm that a sum of Rs. 20,40,000/- was available in his
Bank account, is not correct. In any view of the matter, since
this aspect of the matter has already stood adjudicated and the
order of termination dated 30.12.2019 has also been upheld by a
co-ordinate Bench of this Court by an order dated 22.05.2020,
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
passed in C.W.J.C. no. 559 of 2020, now it is too late in the day
for the petitioner to raise such issues in the present writ petition
and the petitioner cannot be permitted to circumvent the process
of law as also it cannot be permitted to assail the order of
termination dated 30.12.2019, in the garb of the present writ
petition.
20. The next issue which has been raised by the learned
counsel for the petitioner is that the respondent-Corporation in
the impugned order dated 03.06.2020, at serial no. 2 of the chart,
has wrongly stated that there is no rule in the Corporation which
allows renewal of terminated Distributorship on sympathetic
grounds. This Court finds that the reliance of the learned
counsel for the petitioner on Clause 4 of the Guidelines dated
03.12.2007, which provides for revival of the Distributorship
subject to the Distributor meeting the eligibility criteria for
selection as a new Distributor, is of no help to the petitioner,
inasmuch as the case of the petitioner falls under the exception
Clause i.e. Clause 4.1 which reads as follows:-
"4.1 Revival of distributorship shall not be
allowed in the following cases :
4.1.1 Distributorships terminated on account
of malpractices/ irregularities/ breach of
Distributorship Agreement/ Violation of MDG.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
This will not however come in the way of
consideration of decision on appeals, which may
be made by the terminated dealership under the
provision of MDG."
This Court finds that since the petitioner's Distributorship
has stood terminated vide order dated 30.12.2019 on the ground
of breach of terms and conditions of Distributorship Agreement,
which has also been upheld by the Hon'ble Patna High Court
vide Judgment dated 22.05.2020, passed in C.W.J.C. no. 559 of
2020, Clause-4.2 to Clause 4.l of the Circular No.
SL/1601/2007, issued by the Indian Oil Corporation, L.P.G.
Department, HO, dated 03.12.2007 shall not be applicable in the
case of the petitioner herein, hence admittedly there is no rule of
the respondent-Corporation which permits renewal of a
terminated Distributorship on sympathetic grounds, especially in
cases where Distributorship has been terminated on account of
malpractices/ irregularities/ breach of Distributorship
Agreement/ Violation of MDG. Thus, this Court is of the
considered view that the case of the petitioner has been rightly
rejected by the impugned order dated 03.06.2020, passed by the
General Manager (L.P.G.), Bihar State Office, Indian Oil
Corporation Limited.
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
21. Now coming to the reply of the respondent-Corporation
furnished in the impugned order dated 03.06.2020 at serial no. 6
of the chart, the same is also akin to serial no. 2 of the impugned
order dated 03.06.2020, hence is not being discussed herein
separately.
22. Finally, coming to the last contention of the learned
counsel for the petitioner to the effect that since the challenge to
the selection of the father of the petitioner as a L.P.G.
Distributor has already failed on account of dismissal of the writ
petition bearing C.W.J.C. no. 1190 of 2009 by an order dated
25.03.2010 passed by a coordinate Bench of this Court, the
matter could not have been re-opened, this Court is of the view
that the said issue being raised by the petitioner is not germane
for the purposes of adjudication of the present writ petition,
inasmuch as the cardinal/fundamental issue in the present writ
petition is as to whether any rule exists, as far as the respondent-
Corporation is concerned, which permits revival or renewal of
the terminated Distributorship on sympathetic grounds and the
said issue has already been answered in the negative i.e against
the petitioner herein, by this Court, hereinabove in the preceding
paragraphs. It is needless to state that the afore-said issue being
now raised by the petitioner could have been an issue for
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
consideration in the earlier round of litigation emanating out of
C.W.J.C. No. 559 of 2020, which has already stood dismissed
vide Judgment dated 22.05.2020, passed by a co-ordinate Bench
of this Court, whereafter the petitioner has also preferred a
petition for review of the said judgment dated 22.05.2020,
bearing Civil Review no. 79 of 2020. Thus, the afore-said
argument advanced by the learned counsel for the petitioner is
held to be mis-conceived.
23. Now, coming to the judgments referred to by the learned
counsel for the petitioner, as far as the judgement rendered by
the Hon'ble Apex Court in the case of Commr., Karnataka
Housing Board v. C. Muddaiah (supra) is concerned, the same
has got no relevance in the facts and circumstances of the
present case, inasmuch the directions issued by the Hon'ble
Patna High Court in its judgment dated 22.05.2020 has fully
been complied with by the respondent-Corporation. As far as the
judgment rendered by the Hon'ble Apex Court in the case of
Atma Linga Reddy (supra) is concerned, the same has also got
no relevance in the facts and circumstances of the present case,
inasmuch as this Court finds that the respondent-Corporation
has placed all the facts before this Court, as far as the lis
involved in the present case is concerned. The judgment referred
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
to by the learned counsel for the petitioner, rendered by the
Hon'ble Apex Court in the case of Alka Gupta (supra), on the
issue of res judicata is also of no significance, inasmuch as the
issue of res judicata has not been argued by either of the parties.
As far as the judgment rendered by the Hon'ble Apex Court in
the case of B. Prabhakar Rao (supra) is concerned, reliance of
the petitioner on the same is also misconceived, inasmuch
nothing has been brought to the notice of this Court which
would show that the respondent-Corporation has filed
contradictory affidavits. Now coming to the judgments rendered
by the Hon'ble Apex Court in the cases of Punjab SEB Ltd. v.
Zora Singh (supra) and Ashwani Kumar Singh (supra), this
Court finds that the same are of no pertinence in the facts and
circumstances of the present case in as much as the principles
determined in the said cases have not been argued by the Ld.
Counsel for the petitioner in the instant proceedings. The
judgments, referred to by the learned counsel for the petitioner,
rendered by the Hon'ble Apex Court in the cases of Rattan Lal
Sharma (supra), Dhananjay Sharma (supra) and Deepa
Gourang Murdeshwar Katre (supra), are also of no use to the
petitioner, inasmuch as neither any issue of bias nor any issue of
forgery / misrepresentation on the part of the respondent-
Patna High Court CWJC No.7295 of 2020 dt.15-01-2021
Corporation has been canvassed during the course of arguments
advanced by the learned counsel for the petitioner. The
judgment referred to by the learned counsel for the petitioner,
rendered by the Hon'ble Apex Court in the cases of Radha
Krishna Jha (Dr) (supra), Supreme Court Employees' Welfare
Assn. (supra) and Benedict Denis Kinny (supra) are also of no
relevance in the facts and circumstances of the present case,
inasmuch such issues have neither been pleaded nor raised at the
time of hearing of the present case.
24. Having regard to the facts and circumstances of the case
and for the reasons mentioned hereinabove in the preceding
paragraphs, this Court finds that there is no infirmity or
illegality in the impugned order dated 03.06.2020 passed by the
General Manager (L.P.G.), Bihar State Office, Indian Oil
Corporation Limited, hence requires no interference.
Consequently, the present writ petition stands dismissed, being
bereft of any merit.
(Mohit Kumar Shah, J)
rinkee/-
AFR/NAFR AFR
CAV DATE 08.01.2021
Uploading Date 15.01.2021
Transmission Date NA
