- (1.) SUNIL Ambwani, J. Heard Shri Arvind Kumar Shukla, learned counsel for the petitioner. Shri Prakash Padia appears for the Indian Oil Corporation Ltd ( in short the Corporation ). The pleadings have been exchanged. With the consent of parties, the writ petition was finally heard.
(2.) THE petitioner is a dealer of the Corporation and carries on business of retail sales and supplies of petroleum products, on the plot of land owned by him, under an agreement dated June 7, 1990 executed between the petitioner and the Corporation in the 'open General Category'. A team of officers of the Corporation visited the retail outlet on January 19, 2006. By a letter dated January 30, 2006 the petitioner was required to explain the reasons of the following irregularities:- "1. MS DU Z-Line was found to be found delivering excess by 60 ml in 5 Lts for which recalibration of DU was advised. You were supposed to get the DU recalibrated in the presence of an Officer of IOC. No information has been received till date. 2. Air Facility was not available. 3. Housekeeping was very poor. Weights and measure seals of Z-Line MS Du assembly was loose. It has further been reported that the Pump Manager was present at the RO when the inspecting team reached the RO. One of the partners came to the RO within 5 minutes and a few minutes later a mob of 30-40 people gathered at the RO with a threatening stance. Some of them were armed with Lathis and tried to intimidate the inspecting team. This has been viewed very seriously. You are advised to explain, within 7 days of receipt of this letter, as to why the mob was collected at the RO with intention to intimidate the inspecting team. You are also advised to explain, within 7 days of receipt of this letter, the reasons for above irregularities. " 4. On receiving the petitioner's reply a show cause notice was issued to him on 31. 3. 2006 to explain as to why his dealership be not terminated. The petitioner submitted a reply on April 17, 2007, stating that on 19. 1. 2006 there was some puja ceremony at Sourabh Brick Works, also own by him. The respectable persons of the society as well as the villagers were present at the ceremony. After finishing the puja the members of the 'udyog Vyapar Pratinidhi Mandal, Nawabganj' reached the retail outlet to collect donations. These persons were never called by the petitioner and did not create any hindrance in the inspection. With regard to recalibration of the delivery unit, the petitioner explained that on the advise of the inspecting team the unit was recalibrated by the officers of the Weights and Measurement Department, and that only thereafter the sales were resumed. The petitioner did not accept that the seal was found loose. He was only advised to get the delivery unit recalibrated. The advice was accepted and unit was recalibrated.
(3.) THE General Manager of the Corporation, by his order dated October 30, 2006, terminated the dealership on the following violations:- "a) Clause 2 (b) of MDG-2005 for tampering with Weights and Measure seal, which was found loose and the unit was giving excess delivery. b) Clause 58 (m) of dealership agreement, for gathering a mob of people armed with 'lathis' with an intent to intimidate the inspecting officials. " THE petitioner filed an appeal under clause 6. 3. 5 (iv) of the Marketing Guidelines. THE appeal was dismissed with the observations:- "having carefully considered submissions made by the appellant in his letter of appeal and personal hearing and after perusing all the relevant record my observations are as under: THE irregularities of loose Wandm seal of DU and excess delivery has been accepted by the appellant firm vide inspection report dated 19. 1. 2006. Moreover, vide letter dated 3. 2. 2006 the appellant has confirmed that the Z-line DU which was making 80 ml excess delivery and whose seal was loose has been recalibrated and certificate has been obtained. THErefore, State Office is correct in not accepting the appellant's contention in his reply dated 17. 4. 2006 to show cause that the Wandm deptt. Official did not find the seal as loose or the appellant has not accepted that the seal was loose. Thus the appellant has violated clause 2 (b) of MDG regarding tampering of Wandm seal. THE scope of hearing by the appellate authority is limited to review of action taken under irregularities covered under MDG and not for other irregularities. THE termination of the appellant's dealership is in order on account of violation of MDG 2005. THEre is nothing to interfere with the order of the Corporation dated 30. 10. 2006 and hence the appeal stands dismissed. Sd/- Appellate Authority 25. 9. 2007 A. M. K. Sinha" Learned counsel for the petitioner contends that the orders passed by the Corporation and the appellate authority under the Marketing Guidelines are grossly arbitrary, irrational and is a disproportionate executive action. The petitioner did not accept the irregularities of loose Wandm seal of the delivery unit. The excess delivery by Motor Spirit Dip Unit did not amount to malpractice. There could be no reason for which the petitioner will sell the petroleum products in excess and consequently suffer losses. The fact, that the petitioner accepted the advice to get the delivery unit recalibrated, was not the admission of any irregularity. The officers of the Weights and Measurement Department, performed statutory duties. The presence of the officers of the Indian Oil Corporation, was not felt necessary and that after the unit was recalibrated to which no objection was taken the petitioner started selling petroleum products. The persons, who had assembled at the petrol pump, neither intimidated nor created any obstruction in the inspections. The apprehensions of the inspecting teach could not be a ground to take the extreme steps of the termination of the dealership.;