M/S Sridhika Indane vs The Indian Oil Corporation Ltd
2023 Latest Caselaw 127 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.14321 of 2022
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M/s Sridhika Indane a Proprietorship Firm, having its place of Business at Plot No. 1914, Khata No. 133, Thana- 353, Village Bishwanathpur, Dumra, District Sitamarhi through its Proprietor Rajesh Kumar, Male, Aged about 46 years, Son of Laxmi Narayan Sahu, Resident of Mohalla Bhathiyari Sarai, Gangasagar, Ward No. 17, P.S. Darbhanga, District Darbhanga.

... ... Petitioner/s Versus

1. The Indian Oil Corporation Ltd. through its Managing Director, Registered Office at G-9 Ali Yawar Jung, Bandra (East), Mumbai.

2. The Managing Director, Indian Oil Corporation Ltd., G-9 Ali Yawar Jung, Bandra (East), Mumbai.

3. The General Manager (LPG) Bihar State Office, Indane Oil Corporation, Lok Nayak Bhavan, Dak Bunglow Chowk, Patna.

4. The Deputy General Manager (LPG-S) Indane Area Office, Patna, First Floor, Exhibition Road, Patna.

5. The Area Manager Indane Oil Corporation Ltd, (Marketing Division) 1st.

Floor, Shahi Bhawan, Exhibition Road, Patna.

6. The Assistant Manager (LPG-S), Muzaffarpur Indane Divisional Office, Sherpur, P.O. MIC Bela, Muzaffarpur.

7. The Divisional LPG Head, Muzaffarpur Indane Divisional Office, Sherpur, P.O. MIC Bela, Muzaffarpur.

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

For the Petitioner/s : Mr. S.D. Sanjay, Sr. Advocate Mrs. Priya Gupta, Advocate Mr. Lokesh Kumar, Advocate Mr. Anand Kumar, Advocate Mr. Rahul Kumar, Advocate For the Respondent/s : Mr. Sanat Kumar Mishra, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 10-01-2023 Heard Mr. S.D. Sanjay for the petitioner and Mr. Sanat

Kumar Mishra for the State.

The petitioner/LPG Dealer is aggrieved by the decision

of respondent no. 7/the Divisional LPG Head, Muzaffarpur, Indane Patna High Court CWJC No.14321 of 2022 dt.10-01-2023

Divisional Office, IOC, whereby, in a disciplinary action against

the petitioner under the MDG (Marketing Discipline Guidelines),

2022, he has been saddled with a fine of Rs.3,72,659.86/- as also

the appellate order dated 24.08.2022, affirming the same, which

was communicated to the petitioner through E-mail dated

05.09.2022.

The appellate order but has been brought on record by

the respondent/Indian Oil Corporation.

The methodology for calculating the quantum of fine is

20% of the yearly commissionage plus the quantum of irregularity.

79 numbers of 14.2 Kgs. cylinders were found to be missing in the

inspection, the price of which was calculated at Rs.1,81,700/-. Rest

of the amount as noted above is by way of 20% of the

commissionage. Be it noted that the commission earned by the

petitioner is Rs.8,046,806.32/-.

There is no dispute with respect to the calculation of the

fine.

What the petitioner contests is that the authority passing

the first order did not assign any reason to reject the explanation

offered by the petitioner. One of the mandates in the MDG

(Marketing Discipline Guidelines), 2022 is that the concerned

Divisional LPG Head/Territory Manager/Regional Manager, shall, Patna High Court CWJC No.14321 of 2022 dt.10-01-2023

after reviewing the charges levelled in the show cause notice to a

dealer and the reply received from him, shall pass a speaking order

within a period of 45 days from the date of receipt of the reply.

The petitioner has assailed the aforesaid order on the

ground that the concerned authority, reviewing the allegation

against the petitioner, has only disclosed that the explanation

offered by the petitioner is not satisfactory and then he has gone on

to calculate the quantum of fine for the shortage in the stock

position.

In the first order, referred to above, the petitioner was

made known that he could appeal against the aforesaid order

within thirty days from the receipt of the order, failing which the

order shall become final.

The petitioner had appealed against the aforesaid order

with all his explanation but the same stood rejected, as noted

above, vide order dated 24.08.2022. Though some reason has been

assigned in the appellate order for rejecting the reply of the

petitioner viz. that the explanation offered by the petitioner was

not acceptable as 79 numbers of 14.2 Kgs. domestic cylinders

were found missing at the time of inspection and the claim of the

dealers/petitioner of confirmation of the stock of previous day's

sale to be taken on its face value and not on physical inspection, Patna High Court CWJC No.14321 of 2022 dt.10-01-2023

was not accepted to be the correct explanation for the missing

cylinder.

Mr. S.D. Sanjay while assailing both the orders has

submitted that the first order is non-speaking whereas the

second/appellate order discloses wrong reasoning. He has

submitted that in the first instance, the petitioner had informed the

inspecting authority that few cylinders were given to two of the

vendors, early in the morning, before the inspection began,

because it was the summer month of May. During the course of the

day those cylinders were returned by the vendor, which fact

though was orally acknowledged by the inspecting team but the

same entered in the report. It was for this reason that the

representative of the petitioner refused to append his signature on

such report.

The learned counsel for the petitioner submits that this

too, (non-signing of the report of inspection) was considered as an

act of intransigence and was made a ground for imposing fine on

the petitioner. The explanation voiced in the memo of appeal was

never advert to.

We find that the petitioner is not coming up with such

explanation for the first time in this writ petition but it was his Patna High Court CWJC No.14321 of 2022 dt.10-01-2023

consistent stand right from the time when the inspection was

made.

We do acknowledge that if at all the report was not

worth signing by the representative of the petitioner, such protest

ought to have been registered on the report itself which would

have shown the bona fides of the petitioner. Nonetheless, we find

that another decision is required to be taken by the original

authority, taking into account such explanation. The original

authority shall have it ascertained whether the accusation of the

petitioner is correct, and shall advert to the reply filed by the

petitioner and only thereafter shall take a decision in that regard.

We say so for another reason that even though few

reasonings have been given in the appellate order, the defect of the

original order being non-speaking cannot be cured/restituted in

appeal.

For the afore-noted reasons in the preceding paragraphs,

we set aside the order passed by the original authority as also the

appellate authority and remit the matter to the original authority to

advert to the reasons given by the petitioner, ascertain the facts

afresh and pass an objective order with reasons within a period of

four weeks from the date of receipt/production of a copy of this

order.

Patna High Court CWJC No.14321 of 2022 dt.10-01-2023

The authority shall also consider the feasibility of giving

personal hearing to the petitioner.

The application is disposed of with the afore-noted

direction.

                                                                    (Ashutosh Kumar, J)


                                                                    (Satyavrat Verma, J)


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Uploading Date          13.01.2023
Transmission Date