Bhaskar Bhattacharya, J. - (1.) THIS Mandamus-Appeal is at the instance of the Indian Oil Corporation and is directed against an order dated 13th July, 2010, passed by a learned Single Judge of this Court, by which His Lordship disposed of a writ-application filed by a Dealer of the Indian Oil Corporation Ltd. challenging the order of termination of the dealership by virtue of the order dated January 07, 2008 on the allegation of failure on his part to maintain the requisite standard in respect of Motor Spirits.
(2.) BY the said order, the learned Single Judge quashed the order of termination with liberty to the Indian Oil Corporation to conduct a fresh hearing after making available the opinion of the concerned Officer, if any, in not retesting the sample retained by the writ-petitioner. His Lordship also directed restoration of supply to the writ-petitioner with further direction of revoking the order of suspension within a period of three weeks from the date of supplying the certified copy of the order. Being dissatisfied, the Indian Oil Corporation has come up with the present Mandamus-Appeal. The case made out by the writ-petitioner may be summed up thus: a) The writ-petitioner was, the sole proprietor of 'M/s. Biswakarma Filling Station' at Kuli Chowrasta, P.O.- Kuli-Kandi in the district of Murshidabad and is a dealer of the Indian Oil Corporation Limited, Eastern Region. b) The Assistant Sales Manager, Indian Oil Corporation Limited (Marketing Division), Eastern Region, inspected the retail outlet of the writ-petitioner on 5th November, 2004 and he drew nozzle sample of Motor Spirit, High Speed Diesel and Lubricant Oils in three separate sealed containers for each product from which he kept one container at the writ-petitioner's retail outlet and took away the other two containers of sample. c) By a letter dated 23rd November, 2004, the Indian Oil Corporation Limited informed the writ-petitioner that the sample from the retail outlet taken on 5th November, 2004, had failed the laboratory test and the writ-petitioner was asked to stop the sales and supplies of all the products until further advice. It was further pointed out that further communication would be conveyed to the writ-petitioner and the writ-petitioner was required to explain within 5 days why such thing had occurred in the outlet. d) On the selfsame day, i.e. November 23, 2004, the writ-petitioner had written back to the Indian Oil Corporation, thereby praying for retesting of the sample retained by the writ-petitioner. e) Long thereafter, on 16th February, 2006, a show cause notice was issued upon the writ-petitioner. In the said show cause notice, a past incident on 20th March, 2003 when the writ-petitioner failed to pass the laboratory test was indicated and he was also reminded of the earlier penalty of Rs. 20,000/- imposed upon the writ-petitioner for the said incident. In the selfsame show cause notice, the Indian Oil Corporation further informed that on further inspection held on 5th November, 2004, after testing, vide a report dated 9th November, 2004, the MS Sample was found to have failed in meeting the specification in respect of the final boiling point and on the request of the writ-petitioner, the retention sample of Tank Truck was also tested for full specification, which was found to have met the specification as per test report dated 15th December, 2004. According to the said show cause notice, it was clearly evident that the writ-petitioner failed to perform in terms of the Marketing Discipline Guideline, 2001, which had tarnished the image of the Corporation and as such, the writ-petitioner was called upon to show cause within 30 days from the date of receipt of the notice as to why his dealership should not be terminated. f) Along with the suspension order or the show cause notice, the text of the test report was not supplied to the writ-petitioner and as such, by a letter dated 19th March, 2006, the writ-petitioner requested to provide him with the test report of MS sample drawn on 5th November, 2004 and such test report was, for the first time, supplied to the writ-petitioner on 30th November, 2006 g) It is indicated from the test report that the writ-petitioner could not pass the limit prescribed for the Dist. Final Boiling Point, which should be 215 CEL. at the maximum whereas, the sample of the writ-petitioner reported 246 CEL. and item No. 9 of the report, namely, Residue, was found to be 2.1 whereas the maximum permissible level is 2.0. h) The writ-petitioner replied to the show cause notice, thereby disputing the allegations made against him in the show cause notice and pointed out various irregularities of violation of Marketing Discipline Guidelines committed by the Corporation in issue of show cause notice. In the said reply, the following irregularities on the part of the Corporation were pointed out : 1) According to Marketing Discipline Guidelines, the oil company's representative should collect six samples of one liter each from each tank and two samples to be retained by the dealer, two samples by the division or regional office and the rest two samples are for Oil Industry Marketing Laboratory for testing, but such procedure had not been adhered to at the time of taking sample but only three samples were taken. 2) If the sample fails, the explanation of the dealer should be called for in writing giving the details of the failure and enclosing the copy of the test report. But in this case, while the explanation of the dealer was sought for, no copy of the test report was furnished violating the Marketing Discipline Guidelines. 3) In case of sample failure, in the event of request for retesting by the dealer, the same should be considered on merit by the State Office/Regional or Zonal General Manager of the concerned Oil Company and if approved by the General Manager, the sample of retail outlet retained by the dealer along with counter sample retained with the Field Officer/Oil Company are to be tested as per guidelines, preferably in the presence of Field Officer, RO dealer/representative after due verification of the samples. Further all the three samples should be tested only in the same laboratory and if possible, by the same person. In this case, however, although the writ-petitioner made a request to test the sample which was retained at his outlet for testing and pursuant to the said request, A.S.M., Mr. Alok Kumar Dutta, collected the said retained sample from the retail outlet on the selfsame date of testing, it is established from the letter dated 23rd November, 2004 that the retained sample was collected as per the request of R.O. However, unfortunately, the dealer was not informed about the fate of the test of the sample. 4) According to the Guidelines, the test results are to be communicated to the dealer within next five days from the receipt of the test report and in the present case, the test report of sample drawn on 5th November, 2004, had been communicated after lapse of two years to the dealer. 5) Before issuing show cause notice, penal action has been taken against the dealer by suspending the sale before issuing any show cause notice and the said show cause notice was issued after lapse of 14 months from the date of draw of the sample and that too, without enclosing test report. i) Ultimately by a letter dated 7th January, 2008, the Indian Oil Corporation passed the order of termination with the finding that the answer to the show cause notice was not satisfactory and that on the request of the writpetitioner, the retention sample of the tank truck was also tested for full specification at the Regional Laboratory at Gouripur when the MS retention sample was found to have met the specification as per the test report dated December 16, 2004.
(3.) THE writ-application was contested by the Indian Oil Corporation, thereby denying the material allegations made in the writ-application and according to the Indian Oil Corporation, it was not obligatory on their part to send the sample retained by the dealer for laboratory retest as the Tank Truck Retention Sample had been sent for such test. It was further contended that the writ-petitioner never asked for the test report of the Tank Truck Retention Sample from the Corporation and as regards the reason for non-furnishing of test report, it was disclosed in the affidavit that no test report was asked for by the writ-petitioner. THE Indian Oil Corporation further alleged suppression of material fact to the effect that the writ-petitioner did not disclose in the writ-petition that he had asked for testing of the Tank Lorry Retention Sample by letter dated 23rd November, 2004. As indicated earlier, the learned Single Judge, by the order impugned in this appeal, has set aside the order of termination with liberty to the Indian Oil Corporation to conduct fresh enquiry after making available the opinion of the concerned Officer in not testing the sample retained by the writ-petitioner. Being dissatisfied, the Indian Oil Corporation has come up with the present Mandamus-Appeal.;