The court upheld the cancellation of a diesel sale license due to confirmed tampering of dispensing units, establishing the dealer's responsibility for maintaining equipment integrity.

JUDGMENT :

(Per: Hon’ble Jayant Banerji, J.)

Order in Writ-C No. 32973 of 2018

1. Heard Shri U.K. Saxena, learned Senior Advocate assisted by Mrs. Swati Agrawal Srivastava for the petitioner. Shri Devi Shanker Shukla, learned counsel appears for the respondent nos. 2 and 3 (Indian Oil Corporation). Learned Standing Counsel, Shri Ankur Tandon, appears for the respondent no. 4- District Supply Officer.

2. Under challenge in the present petition is an order dated 7.7.2017 passed by the respondent no. 4- District Supply Officer, Ghazipur, which is a suspension order-cum- show cause notice issued to the petitioner to show cause why the license granted under the Motor Spirit and High Speed Diesel (Regulation of Supply & Distribution and Prevention of Malpractices) Order, 2005[Order, 2005] be not cancelled. Further, under challenge is the order dated 16.10.2018 passed by the respondent no. 4 cancelling the license No. 68 granted to the petitioner for sale of diesel from the retail outlet.

3. It appears from the record that on 24.5.2017, an inspection was done by a team of officers in which it was found that in the dispensing units the pulsars of four nozzles, which were examined after breaking the seal, were tampered. The matter being suspicious, all the four nozzles were sealed. It appears that thereafter an FIR bearing Case Crime No. 0462 of 2017 was filed on 4.7.2017 in Police Station Karimuddinpur, District Ghazipur under Section 3/7 of the Essential Commodities Act, 1955, naming the proprietor of the petitioner firm and another. Thereafter, on 7.7.2017, the impugned suspension order and show cause notice was issued suspending the license No. 68 granted to the petitioner for sale of diesel and asking the petitioner to submit its clarification along with evidence.

4. A reply dated 28.7.2017 was submitted by the petitioner. By the impugned order dated 16.10.2018, after considering the reply, the license was cancelled by the respondent no. 4.

5. It is the contention of the learned counsel for the petitioner that at the time of the inspection carried out by the team on 24.5.2017, admittedly, the seal of the dispensing unit was opened, which reflected that the seal, which is put by the Weights and Measures Department under the supervision of the Oil Corporation, was intact and there was no tampering. It is stated that neither the density of the fuel nor the quantity was found to be faulty and there was no short supply. It is stated that the dealer is not the gainer by the so-called tampering of the pulsar/nozzle unit and no ‘malpractice’ as defined in the Order, 2005, was committed by the petitioner. Learned counsel has drawn pointed attention of the Court to the reply of the petitioner submitted after the show cause notice being reflected in paragraph no. 3 of the reply and in the additional statements made in the reply to the show cause notice as well as to paragraph nos. 28 and 38G of the amended writ petition. It is stated that the petitioner had no access to the pulsars and, therefore, the entire case set up by the respondents against the petitioner is illegal and deserves to be set aside.

6. Learned Standing Counsel, who appears for the contesting respondent no. 4, has referred to counter affidavit filed on behalf of respondent no. 4 to contend that test reports dated 1.6.2018 were submitted to the Indian Oil Corporation by the Original Equipment Manufacturer[OEM] manufacturing the Pulsar units. Learned Standing Counsel has referred to the visual inspection report in the test report and the result thereof, to state that it was clearly reflected that tampering had been done in the Pulsar card. It is stated that in view of this definite test report of the OEM regarding the Pulsar card, there is little doubt that the petitioner was guilty of malpractices as defined in the Order, 2005 and the license was justifiably cancelled. Learned Standing Counsel has also stated that the engineer of the OEM was present at the time of the joint inspecti