Telangana High Court

M/S. Maithry Filling Station vs M/S. Indian Oil Corporation Limited on 21 November, 2023

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA


            WRIT PETITION No.31725 of 2023

ORDER:

Heard learned senior counsel Mr Ashok Anand

Kumar representing the learned counsel on record Mr

N.Gangadhar appearing on behalf of the petitioner and

Mr.Domnic Fernandes, learned Standing Counsel for

Indian Oil Corporation Limited (IOCL), appearing on

behalf of respondents.

2. The petitioner approached the Court seeking

prayer as under:

"For the reasons mentioned the accompanying writ affidavit, it is prayed that this Hon'ble Court may be pleased to issue a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd Respondent in taking possession, in the absence of the Writ Petitioner, under the guise of the impugned Proceedings No. TAPSO/WDO/127850/ Termination, dated 20.10.2023, terminating the Dealership Agreement dated 14.03.2019 even without waiting for the completion of appeal time, ignoring the emails dated 31-10-2023, submitted by the Writ Petitioner and not passing any orders on the stay petition, filed along with the Appeal on 06-11-2023, as arbitrary and illegal, against the principles of natural justice, violates the Articles 14, 16 & 300-A of Constitution of India and consequently, direct the Respondents to restore back the outlet to the Petitioner by supplying fuel

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and pass such other suitable order or orders as this Hon'ble Court may deem fit and proper under the circumstances of the case."

PERUSED THE RECORD.

BRIEF FACTS OF THE CASE:

3. The specific case of the petitioner is that aggrieved by

the impugned proceedings No. TAPSO/WDO/127850/

Termination, dated 20.10.2023 passed by the 2nd respondent,

the petitioner herein preferred Statutory appeal, before the

3rd respondent, seeking to set aside the same and the

petitioner also filed stay petition since the Regional Sales

Officer had been forcing the petitioner herein to handover the

physical possession of Retail Outlet dealership at Kamareddy.

6. The learned senior counsel appearing on behalf of the

petitioner placed reliance upon the judgment dated

29.10.2010 reported in (2010) 13 SCC 427 in Oryx

Fisheries Private Limited Vs. Union of India and others,

in particular, paras 27, 28, 31, and 32, read as under:

"27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge- sheet, cannot, instead of

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telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceeding become an idle ceremony.

28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi- judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against. In the instant case from the underlined portion of the show cause notice it is clear that the third respondent has demonstrated a totally close mind at the stage of show cause notice itself. Such a close mind is inconsistent with the scheme of Rule 43 which is set out below. The aforesaid rule has been framed in exercise of the power conferred under Section 33 of The Marine Products Export Development Authority Act, 1972 and as such that Rule is statutory in nature. 31. It is of course true that the show cause notice cannot be read hyper- technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show-cause notice the person who is subject to it must get an impression that he will get an effective

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opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show-cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi- judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence.

32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show cause notice.

8. The learned senior counsel appearing on behalf of the

petitioner further contends that it is observed in the show

cause notice dated 19.07.2023, itself, that the reports

submitted by the OEM confirmed aforesaid irregularity and

therefore, it amounts to prejudging an issue before

conducting an enquiry and therefore, the impugned

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proceedings No.TAPSO/WDO/127850/Termination dated

20.10.2023 terminating the Dealership Agreement dated

14.03.2019 even without waiting for the completion of appeal

time, ignoring the e-mails dated 31.10.2023, submitted by

the petitioner and not passing any orders on the stay petition

filed along with the appeal on 06.11.2023 stands vitiated and

therefore, the petitioner is entitled for all the reliefs as prayed

for herein.

4. It is further the case of the petitioner that to prevent

the petitioner from getting any interim orders, even without

waiting for the completion of the time allowed for preferring

an appeal, the Manager (Retail Sales) and Senior Manager

have unauthorisedly, in contravention to the provisions of the

Public Premises Unauthorized Occupation Act, 1971, and in

connivance with other officials tried to take possession of the

Retail Outlet on 31.10.2023. Further that on 31.10.2023

inspite of the petitioner addressing e-mail requesting the 2nd

respondent and other higher officials not to take possession,

Panchanama procedure was conducted high handedly in the

late evening and possession of the subject premises was

taken unauthorisedly in petitioner's absence. The request of

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the petitioner made through email, dated 31.10.2023 was not

at all considered. Hence, the present Writ petition.

5. A bare perusal of the order Impugned, dated

20.10.2023 clearly indicates that the dealer has right to

appeal within a period of thirty (30) days from the date of

receipt of order, before the Appellate Authority, through the

concerned Divisional/Territory/Regional Office of the Oil

Marketing Company (OMC)."

7. Learned standing counsel appearing on behalf of the

respondents submits that the petitioner instead of pursuing

the appeal preferred by the petitioner against the order

impugned dated 20.10.2023 passed by the 2nd respondent,

had filed the present writ petition.

9. Taking into consideration the submissions made

by the learned senior counsel appearing on behalf of

the petitioner and the learned standing counsel for

IOCL, appearing on behalf of respondents and also duly

considering the judgment dated 29.10.2010 reported in

(2010) 13 SCC 427 in Oryx Fisheries Private Limited Vs.

Union of India and others (referred to and extracted