- (1.) SUDHIR Agarwal, J. The petitioners have approached this Court under Article 226 of the Constitution assailing show cause notice dated 31. 1. 2008, Annexure-9 to the writ petition issued by Senior Divisional Retail Sales Manager, Indian Oil Corporation Limited.
(2.) THE facts in brief, giving rise to the present petition, are as under: Petitioner No. 1-M/s Gabhana Oil Company, a proprietorship concern, is dealing in wholesale of kerosene oil having its premises at village Jawan, Tahasil Gabhana, District Aligarh. The petitioner No. 2 is its proprietor. The petitioner No. 1 has been issued a licence under U. P. Kerosene Control Order, 1962 (hereinafter referred to as "order 1962") is an agent of kerosene oil as defined under Clause 2 (a) of Order 1962. The Indian Oil Corporation (hereinafter referred to as "ioc") is supplier of kerosene oil to the petitioner No. 1. The State Government vide Government Order dated 13. 10. 2005 launched a scheme known as Jan Kerosene Pariyojna (Pilot Project), where under the delivery of kerosene oil is to be made by the oil company through their own transporters to the whole sellers. The IOC in pursuance to the said scheme selected several whole sellers wherein the petitioner was also one of them, who was to be supplied kerosene oil by IOC through its own transporters. The IOC, accordingly, entered into contract with certain transporters for supply of kerosene oil to the underground tanks of the whole sellers. On 16. 1. 2008,20 kilolitre of kerosene oil was dispatched vide tanker No. UP 81 W-9231 and invoice No. 623217131 at 14. 02 hrs. At about 19. 00 hrs. on the same date, i. e. , 16. 1. 2008, the officials of Supply Department raided M/s Agrawal Automobiles Petrol Pump at Khair, District Aligarh, where it found the aforesaid tanker filled with the kerosene oil inside the premises. The first information report was lodged against the dealer M/s Agrawal Automobiles as well as driver of the aforesaid tanker and registered as case crime No. 10 of 2008 under Section 3/7, Essential Commodities Act, 1955 at police station Khair, District Aligarh. The District Supply Officer, Aligarh (hereinafter referred to as the D. S. O.), however, after enquiry, found that the aforesaid kerosene oil was to be delivered to the petitioner and therefore suspended licence of the petitioner vide order dated 17. 1. 2008, Annexure-7 to the writ petition. Pursuant to the aforesaid order of suspension, the respondent No. 3 issued impugned show cause notice to the petitioner alleging that the aforesaid tanker ought not to have been found at any premises other than that of the petitioner and this amounts to violation of Marketing Discipline Guidelines, 2005. The petitioner was called upon to explain the above irregularity within 7 days failing which suitable action is to be taken against the petitioner's dealership. The show cause notice refers to the suspension of petitioner's licence by D. S. O. The petitioner submitted reply on 14. 2. 2008 and it is said that no order has been passed by respondent No. 3 till date. However, in the meantime, the D. S. O. made enquiry from the IOC and on coming to know that the responsibility of delivery of kerosene oil was that of IOC, the tanker and transporter were in contract with IOC and petitioner had no control upon them, found no reason to keep the licence of the petitioner under suspension and consequently, vide order dated 13. 2. 2008 (Annexure-8 to the writ petition) revoked the suspension. The learned counsel for the petitioner submitted that normally it is true that against mere show cause notice, the writ petition is not to be entertained but in the present case, it is evident that respondent No. 3 has issued the aforesaid notice without any application of mind and probably to cover up its own laches or negligence. Non supply of kerosene oil to the petitioner since 17. 1. 2008 is wholly illegal particularly, when the order of suspension of licence of the petitioner has also been revoked by the D. S. O. vide order dated 13. 2. 2008 and at least from then, the respondents have no reason or justification for not supplying kerosene oil to the petitioner and keeping his business closed is causing irreparable loss to the petitioner. It is said that the impugned show cause notice, being wholly arbitrary, is liable to be set aside since it also infringes the petitioner's fundamental rights under Articles 14 and 19 (1) (g) of the Constitution. On behalf of the respondents No. 2 and 3 a counter affidavit has been filed sworn by Sri Rahul Jairath, Assistant Manager (Retail Sales), IOC, Etawah. He has raised a preliminary objection that since Union of India has not been impleaded, therefore, the writ petition is liable to be dismissed for non-joinder of necessary parties. On merits, however, it admits that the delivery of kerosene supply is being made by IOC through its own appointed Tankers/transport companies. It is further stated that the aforementioned tanker was under the contract with IOC for making delivery of supplies ex Mathura Terminal. However, the case of the respondents No. 2 and 3 is that the kerosene oil agency is also responsible to report to IOC about the arrival of kerosene oil and delivery by the transporting tanker within a reasonable time so that there is no chance of in route pilferage of kerosene oil. The scheme of supply of kerosene oil directly by the oil companies has been launched with the aforesaid object. In the present case, petitioner did not inform IOC about non-arrival of kerosene oil within reasonable time. However, it is said that the matter is still under investigation and the petitioner's reply is also being considered, therefore, the writ petition, at this stage, is premature and is liable to be dismissed. This affidavit has been sworn on 3. 3. 2008 and filed before the Court on 20. 3. 2008. The petitioner has filed its rejoinder affidavit sworn on 23. 3. 2008 and it is specifically stated therein that no order has been passed by the respondent No. 3 in the aforesaid matter and petitioner is still not being supplied any kerosene oil by respondents No. 2 and 3. Even on the date of hearing, the position remained the same.
(3.) WE have heard learned counsel for the parties and perused the record. It is no doubt true that normally when a show cause notice is issued, one is not supposed to be permitted to rush to this Court invoking extra ordinary jurisdiction under Article 226 of the Constitution instead of submitting his reply to the said show cause notice and waiting for the appropriate order to be passed by the authority concerned. However, the aforesaid principle cannot be said to be a total bar against entertaining a writ petition under Article 226 of the Constitution but it is a self restraint imposed by the High Courts for not entertaining the matters, which have not attained finality and are still in process of investigation/enquiry. A show cause notice by itself may not constitute to be an action adverse to the interest of the person concerned to whom it is issued and therefore, this Court, normally prefer not to entertain a writ petition under Article 226 of the Constitution and instead require the person concerned to reply the notice and await final decision. However, where it is found that a show cause notice has been issued in a most rack less and negligent manner, showing total non-application of mind and causing serious prejudice to the person concerned as the case in hand, where the petitioner1 business is made standstill by stopping supply of kerosene oil to the petitioner, the Court is not prevented from looking into the legality and genuineness of the notice and to find out whether there is even a prima facie case made out by the respondents concerned for issuing such notice. If this Court finds that there is some matter which prima facie shows involvement of the person concerned and the matter requires investigation justifying show cause notice, no further enquiry would be made and this Court would relegate the parties to await final decision in the matter, but if it is found that a show cause notice has been issued on a mere drop of the hat without showing any iota of culpability of the person concerned and in fact nothing has been found even prima facie against the person concerned, this Court would be failing in its constitutional obligation of protecting such a person from avoidable harassment and violation of his legal and constitutional rights in the hands of the respondents, if it still declines to interfere only on the ground that the order impugned is a show cause notice. From the facts narrated above, the admitted position, as borne out, is that the tanker was under the contract with IOC. The petitioner, under the said scheme, would have come into picture only when the tanker would have reached its premises and would have delivered kerosene oil in its underground tank. The transport company being in contract with IOC, obviously, is not under any guidance, control or supervision of the petitioner, but, on the contrary, the entire control vests in IOC. There is nothing on record to show that the driver of the tanker or the transporter concerned loaded with 20 kilolitres of kerosene oil reached M/s Agrawal Automobiles on the instruction or direction of the petitioner to deliver the said kerosene oil at M/s Agrawal Automobiles. Even in the first information report, there is no such assertion and in the counter affidavit, which has been filed on behalf of the respondents on 20. 3. 2008, it is nowhere stated that the subsequent investigation has revealed involvement of the petitioner for diverting the route of the tanker to M/s Agrawal Automobiles. The contract of IOC with transport company has been admitted in para-11 and 17 of the Counter affidavit, which are reproduced as under: "11. That in respect of the contents of paragraph 13 of the writ petition, it is respectfully submitted that the Tanker No. UP. 8, W. 9231 is under contact with Indian Oil Corporation Ltd. for making delivery of supplies ex Mathura terminal and action is being taken by the Corporation against the transporter. It is true that all Jan Kerosene Pariyojana are delivered supplies and the TT should reach the agency premises and not in other premises, which has no relation with the SKO. 17. That in reply to the contents of paragraph 19 of the writ petition, it is respectfully submitted that it is true that the delivery of the supplies are made by Indian Oil Corporation Ltd. through its appointed TTC. However, the respective SKO Agency to whom supplies are made are also responsible to report to the Corporation of the subject TT not reaching their premises within reasonable time frame to ensure that there is no chance of reroute of filtration. Jan Pariyojna Kerosene (delivered SKO) is one of the major steps taken by Government of India through MOP and NG for ensuring correct delivery of product at the SKO premises and also issuance of correct quantity to the customers. ";