Soumitra Pal, J. - (1.) The petitioner was appointed as a dealer by the Indian Oil Corporation (for short "the IOC"), the respondent No. 1, for the sale of liquefied petroleum gas during the year 1996. The said dealership was terminated by the IOC by an order of suspension dated 8.3.2004, being Annexure P-18 to the writ petition. Being aggrieved by the said order of suspension, the petitioner has preferred the instant writ application. The prayers which are relevant are as follows : "(b)A writ of and/or in the nature of Mandamus commanding the respondents and/or their men, agents or subordinates to show cause as to why the impugned alleged decision of competent authority of the Corporation to suspend the functioning of the petitioner's distributorship with immediate effect as communicated vide letter bearing reference No.WB/LPG/208/40 dated 8th March, 2004 signed by the respondent No.4 being Annexure 'P-19' to this writ petition should not be cancelled, quashed and/or withdrawn; A writ of and/or in the nature of Mandamus commanding the respondents and/or their men, agents or subordinates to show cause as to why the writ petitioner should not be allowed to carry on his business of Liquefied Petroleum Gas distributorship in the name and style of Atreyee Gas Service without any disturbance."
(2.) It is contended by the writ petitioner, that the IOC while issuing the order of suspension has acted upon a complaint regarding an alleged agreement between the writ petitioner and respondent No.6 entered into before being appointed a dealer without the consent of the IOC, but neither any date of such agreement nor any other particulars of such agreement have been disclosed to the petitioner. The said order under challenge has been served without supplying the document sought to be relied upon by the authorities and without giving any opportunity to the petitioner to contradict the allegations of the respondent No.6. The said action is violative of Articles 14 and 19(1)(g) of the Constitution of India as it affects the fundamental rights of the petitioner to carry on trade and business. Allegations are that the respondent No.6 who was removed from the administration of the petitioner's business sometime during August, 2003, having a personal grudge, is trying to harass the petitioner. The said respondent No. 6 filed two writ petitions, but. was unsuccessful.
(3.) Mr. Rabilal Moitra, learned senior counsel appearing for the writ petitioner, reiterating the statements made in the petition submitted that the Deputy Superintendent of Police, Balurghat in his findings appearing at pages 42 and 43 of the affidavit-in-opposition (for short "the opposition") filed by the IOC, came to a finding that the petitioner may continue the business maintaining formalities. Submission was. made that in the agreement between the petitioner and the IOC, though there is no provision for suspension, the IOC has sought to cover up their position by an averment in paragraph 18 of the opposition that wider power of termination includes a lesser power of temporary termination by way of suspension. Referring to the agreement dated 16.9.96 between the I.O.C and the petitioner, it was submitted that clause 27 of the agreement gives power to terminate the agreement forthwith, if the distributor commits any breach of the agreement and fails to rectify such breach within four days of the receipt of a written notice in that regard. Clause 28 of the agreement gives power to terminate the agreement after giving 30 days notice to the other party without assigning any reason for such termination. Submission was made that in case of failure of adhering to the principles of natural justice, a writ can be filed for enforcement of fundamental rights though the agreement provides for an arbitration clause. In support of such contentions, Mr. Moitra referred to the decisions of the judgement of the Supreme Court in the matter of Harbanslal Sahania & Anr. vs. Indian Oil Corporation Ltd. & Ors., reported in 2003(2) SCC 107, wherein it has been held that the High Court can exercise its jurisdiction where writ petition seeks enforcement of any of the fundamental rights. Reference was made to the judgement of the Supreme Court in Modern Steel Industries vs. State of U.P. & Ors., reported in 2001(10) SCC 491, in support of his contentions. Reliance was also placed on the judgement of the Supreme Court in Tata Cellular vs. Union of India, reported in 1994(6) SCC 651. Submission was made that there is no notice of show cause prior to the issue of the order of suspension. Mr. Moitra submitted though the reasons for suspension appear from the averments from paragraphs 13,14 and 15 of the opposition, there is no mention of any date as to when during October, 2003, IOC received the complaint, who were the members of the committee to investigate and how the investigation was carried on, since the petitioner was not called during such investigation. Such complaint or carrying on the investigation which form the basis for issuing the suspension order do not appear from the records. Mr. Moitra denied that any deed of partnership, being Annexure R-2 of the opposition, was entered into by the writ petitioner and the respondent No.6 on which reliance has been made by the IOC while issuing the order of suspension. Moreover, deed of partnership is not genuine as it does not appear from the said annexure, as when the stamp was purchased and by whom. It was submitted that though the order of suspension was passed, the same is not based on records since paragraphs 13, 14,15 and its sub-paragraphs of the opposition have been affirmed as true of knowledge. In short, it was submitted that as nothing is on record to show that an agreement was entered into by the writ petitioner with the respondent No.6, entire action taken by the IOC in suspending the distributorship of the petitioner is illegal and thus, should be set aside and quashed.;