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IN THE HIGH COURT OF CALCUTTA
Tapen Sen, Siddhartha Chattopadhyay, JJ.
Hindustan Petroleum Corporation Ltd. & Ors. - Appellants
Versus
Dharamnath Singh & Ors. - Respondents
F.M.A. Nos. 653 & 654 of 2012
Decided On : 05-05-2015
For the Appellants :Ashoke Kr. Bandopadhyay, Sr. Advocate, Apurba Kumar Ghosh, Advocates
For the Respondents:Debabrata Saha Ray, Pingal Bhattacharya and Chandrachur Chatterjee, Advocates
An Agent of the Oil Company, namely M/s SGS India Pvt. Ltd had absolutely no authority to take samples or make any seizure of any product contrary to the provision of Clause 7 of the aforementioned Order read with Section 100 of the Code of Criminal Procedure.
Headnote:
PETROL PUMP DEALERSHIP - TERMINATION - M/s Hindustan Petroleum Corporation Limited (HPC) terminated the dealership of the Respondent due to alleged irregularities in the supply of diesel. The Respondent challenged the termination order, arguing that the samples were collected by an unauthorized agency and that the Corporation did not follow the proper procedure.
Fact of the Case:
The Respondent, who runs a petrol pump in the name of M/s Parsuram Singh, was appointed as a Retail Outlet Dealer of Diesel and Petrol (HSD & MS) in 1997. On 18.08.2007, some personnel of 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 and MS. Based on the preliminary test report conducted by the agency, the Corporation suspended the sales and supplies to the retail outlet with immediate effect. The Respondent filed a writ petition challenging the suspension order. The Corporation issued a show-cause notice to the Respondent and subsequently terminated the Dealership Agreement on 05.10.2007.
Finding of the Court:
The Court held that the Corporation did not have the authority to appoint SGS India Pvt. Ltd. as its Agent to conduct the test and that the action of the Appellant Corporation proceeding to firstly suspend and then terminate the Dealership was absolutely illegal and without jurisdiction. The Court also held that the samples were taken in complete violation of the mandatory procedural provisions of the Control Order and Section 100 of the Code of Criminal Procedure.
Issues: 1. Whether the Corporation had the authority to appoint SGS India Pvt. Ltd. as its Agent to conduct the test? 2. Whether the samples were taken in accordance with the mandatory procedural provisions of the Control Order and Section 100 of the Code of Criminal Procedure?
Ratio Decidendi: 1. The Court held that the Corporation did not have the authority to appoint SGS India Pvt. Ltd. as its Agent to conduct the test because the Control Order only authorizes Officers of the Oil Company not below the rank of a Sales Officer to perform such functions. 2. The Court held that the samples were taken in complete violation of the mandatory procedural provisions of the Control Order and Section 100 of the Code of Criminal Procedure because the samples were taken by an unauthorized agency and the provisions of Section 100 of the Code of Criminal Procedure were not followed.
Final Decision: The Court set aside the Order of suspension as well as the Order of termination of Dealership and dismissed the appeal filed by the Corporation.
Tapen Sen, J.
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 v. 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 Petitioner/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 Kilo liters 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.
3. 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
