Tapen Sen, J. - (1.) THIS appeal is directed against the judgment dated 30.08.2011 passed by a learned Single Judge of this Court in WP No. 22993(W) of 2007 (Dharamnath Singh Vs. Union of India & Ors.) whereby and whereunder the learned Judge set aside the Orders of suspension as well as termination of the license of the Respondent and directed the appellants to issue indent with immediate effect. The other appeal relates to WP No. 19933 and it is directed against the same judgment. While WP No. 19933(W) of 2007 was filed challenging the Order of suspension, the other Writ Petition being WP No. 22993(W) of 2007 was filed challenging the Order of termination of dealership issued on 05.10.2007 by the learned Senior Regional Manager and the duly constituted Attorney of Hindustan Corporation Limited (hereinafter referred for the sake of brevity as HPC and/or the appellants). Both the Writ Petitions were taken up together by the learned Single Judge who has passed the impugned Order.
(2.) THE facts, in brief, is that in the year 1951, the Petitioner's father namely Parsuram Singh was appointed as a Retail Outlet Dealer of Diesel and Petrol (HSD & MS) at G.T. Road, Andal More, Andal in the District of Burdwan. After his death, the Writ Petitioner/Respondent and his mother, Rampari Devi were jointly appointed as Dealers and after her death, the Writ Petitioiner/Respondent was individually appointed as a Retail Outlet Dealer of HSD & MS in the year 1997. The Dealership is run in the name and style of M/s Parsuram Singh and it is being run by the Writ Petitioner/Respondent as its sole proprietor. The Writ Petitioner had stated before the Writ Court that the business of the petrol pump was being run without any allegation and/or complaints from anyone and to the fullest satisfaction of all the concerned. Various facts have been given with regard to the receipt of petrol and diesel and on the date of arrival of High Speed Diesel Oil on 17.08.2007, there was a residuary stock of 10.357 Kiloliters of diesel in the filling station and after arrival of a stock of 8 Kilo Liters on 17.08.2007 itself, the quantity of the stocks of High Speed Diesel Oil in the filling station had become 18.357 Kiloliters. While running the petrol pump, on 18.08.2007 at about 1:30 PM some personnel of one SGS India Pvt. Ltd., claiming themselves as an agency engaged by HPC, visited the petrol pump and took samples from both the tanks of HSD as well as MS and without conducting Marker Test in a proper manner, came to a preliminary finding that the High Speed Diesel in one of the tanks was not proper. Thereafter, on the same day, the Senior Sales Officer, Durgapur Retail Sales Area (HPC) informed that on the basis of such Preliminary Test Report conducted by the agency, the sales and supplies to the retail outlet was being suspended with immediate effect. Before the Writ Court, the Writ Petitioner stated that his representative went to the Regional Office of the HPC and protested saying that the samples had been collected by an agency which had no authority and therefore no steps could have been taken by them on the basis of such samples or preliminary finding recorded by the Agency but, without considering such objection, the officers of the HPC allegedly conducted further Marker Test without following any procedure. Being aggrieved by the Order of suspension of supply, the Petitioner filed WP 19933(W) of 2007 and by an Order dated 13.09.2007, the Respondents/Appellants were directed to file their Affidavit -in -Opposition. An interim Order was passed to the effect that the Oil Company shall conclude the proceedings within three weeks and the Petitioner was directed to co -operate. A further Order was passed that if the proceedings were not completed within three weeks, then the impugned Order of suspension dated 18.08.2007 will be deemed to have been suspended w.e.f. the expiry of the said period of three weeks. Thereafter, on the verge of expiry of the said period of three weeks, a show -cause Notice dated 27.09.2007 was issued by the Senior Regional Manager of HPC asking the Petitioner to show cause as to why necessary action in terms of Clause 26, 27, 44, 58(i) & (m) of the Dealership Agreement dated 01.02.2007 be not taken. The Writ Petitioner had a grievance that actually less than 24 working hours were given to the Petitioner to submit his reply. Be that as it may, the Petitioner did file his reply on 02.10.2007 although it was a holiday being the Gandhi Jayanti and on 09.10.2007, the Petitioner received an Order dated 05.10.2007 issued by the Senior Regional Manager, HPC intimating the Petitioner that the Dealership Agreement dated 01.02.2007 had been terminated. Let it be recorded that after the death of his mother, the Writ Petitioner was appointed as a Retail Outlet Dealer in the year 1997 but before that, the actual license had been given in 1951 in the name of his father. Both the Writ Petitions were taken up together and by reason of the impugned Order passed on 30.10.2011, the suspension of supply as well as the Order of termination were both set aside. It is against the said Order that M/s Hindustan Petroleum Corporation has filed this appeal.
(3.) MR . Ashoke Kr. Banerjee, learned Senior Counsel appearing for the Appellants, has drawn our attention firstly, to a Certificate purporting to be dated 03.11.2006 which has inter -alia informed all concerned that the Oil Marking Companies (HPC, IOC, BPC & IBP) had awarded a contract to M/s SGS India Pvt. Ltd. for supply of Marker, Test Kits and IAS Columns for carrying out Marker Tests at the Terminals, Depots and Retails Outlets including testing for presence of marker. Learned Counsel then submitted, with reference to the Memorandum of Agreement entered by and one HPC and the Writ Petitioner on 01.02.1997 (Annexure P1 appended to the Supplementary Affidavit) which was taken on record, that as per Clause 39 and 44 of the said Agreement, the Corporation was entitled, at all times, to enter into the premises and inspect the management of the retail outlet of the Dealer in all respects. Clause 44 stated that the Dealer would faithfully and promptly carry out and observe and perform all directions or rules given by the Corporation from time to time. According to Mr. Banerjee, the Writ Petitioner having entered into a contract, cannot take the plea that the Corporation did not have the authority to appoint M/s SGS India Pvt. Ltd. to conduct the test. Mr. Banerjee also drew out attention to Clause 58 of the Agreement which inter -alia gives liberty to the Corporation to terminate the Agreement if any of the violations mentioned in the sub -Clauses therein were committed by one of them being a breach of any of the covenants or stipulations contained in the said Agreement.;