BPCL is empowered to engage respondent No.4 and consequently the respondent No.4 is authorized to inspect the retail outlets of BPCL, and collect and test samples, even though the respondent No.4 is not authorized to collect and test samples in the manner laid down in the statutory provisions.

1. The two petitioners and the added respondent, who are brothers, constituted a partnership firm under the name and style M/s. Sankar Filling Centre. In pursuance of a Memorandum of Agreement (hereafter the MOA) executed on 2.11.98 between Bharat Petroleum Corporation Limited (hereafter BPCL) and the three brothers, they were appointed as dealers and license was granted by it in their favour for a period of 15 years from 26.6.98 to run the retail outlet at 73D, Narkeldanga Main Road, Kolkata 700 054 and to use motor spirit and/or HSD pumps, storage tanks, pipes and fittings and all other facilities erected and provided by BPCL upon the said premises and also other facilities that may be provided by BPCL on the said premises during continuance of the licence. It is the specific case of the petitioners that they have been running the retail outlet without any blemish and at no point of time any complaint was lodged by any customer regarding quality and quantity of petroleum products sold by them from the retail outlet. From time to time, officials of BPCL conducted a number of inspections and on each of such inspection, no irregularity was detected. However, on 20.10.07 employees of SGS India Private Limited, the respondent No.4, being a private agency having no authority to enter upon the retail outlet made an unauthorized collection and testing of samples which was objected to by the petitioners. Since however no action was taken by BPCL on the basis of such unauthorised testing, the matter was not proceeded with.

2. It is their further case that on 3.12.07 employees of the respondent No.4 again visited the retail outlet of the petitioners and sought to conduct marker test of high-speed diesel and motor spirit. Despite objection raised by the employees of the petitioners. samples were collected from the retail outlet. The employees of the respondent No.1 having carried out the marker test of petrol and diesel products expressed that while all products had passed the tests, testing of diesel on analysis has shown 'P' (pink) on the marker and, therefore, has failed the test. Copy of the report was given to the petitioners by the employees of the respondent No.4 and the same is annexure P-3 to the petition.

3. In the afternoon of 3.12.07 itself, the petitioners received a communication from the Deputy Manager (Sales) of BPCL. On the basis of the test conducted by the respondent No.4, a report had been submitted to BPCL mentioning that HSD (diesel) sample, tested vide IAS Column No.04162442 had turned 'pink' and, accordingly, in terms of the extant guidelines the petitioners were advised to suspend the sale of all products with immediate effect till further intimation. It was further conveyed that all tanks and dispensing units were being sealed.

4. Close or the heels of the order suspending sales of products followed a letter dated 7.12.07 from the Territory Manager (Retail), Kolkata, of BPCL. The contents of the first paragraph of the letter reiterated the visit of the officials of the respondent No.4 to the retail outlet on 3.12.07 and the result of such inspection. In the second paragraph of the letter it was mentioned that in terms of the prevailing policy retesting of the samples of the retail outlet, the tank lorry and the supply location were conducted at the Budge Budge laboratory of BPCL on 6.12.07 in presence of the petitioners, the transporters' representative, representative of the respondent No.1 and the Deputy Manager (Sales) and on testing, the HSD sample taken from the retail outlet tested 'P' (Pink) while HSD sample drawn from the tank lorry indicated the result 'N' (Not pink), While enclosing copy of the test report, the petitioners and the added respondent were required to explain in writing within 7 days from date of receipt of the same, the reasons for failure of HSD sample collected from the retail outlet to pass the marker test failing which it would be construed that they have no explanation to of