Friday, May 25, 2012

M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh






IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
LIST OF DATES IN CHROLOGICAL ORDER
CIVIL MISC. WRIT PETITION NO.                                          OF 2009
                               (Under Article 226 of the Constitution of India)         
                                                                                             (District –Farrukhabad)
             M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad and another .        ------------------Petitioners
                                                 Versus
            Indian Oil Corporation, Ltd  through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II,  Noida. And others ……………………………    Respondents
S.N.
Dates
Particulars of Case

1
16.5.1976
Sri R.K.Girdhar , General Manager himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).The order dated 20.12.2007 has been passed in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power. This may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD). Just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by sri Rakesh Jaiswal Then Dy. General Manager in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in impugned order ,

2
16.8.2006
There was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007)  to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) that there may not be even the apprehension upon the mind of inspection team that totaliser could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspicion. The responsibility was lying upon his  officials to replace the crack seal of one of the DUs –HSD (Of Avery make), (as per the Inspection Report by the weight and measurement officer made on 19.6.2007),

3
16.8.2006
 HSD-DU was connected to two tanks of the supply of HSD-DU (20 kl &15Kl ) as they may not be related with any irregularity in maintaining the supply of HSD-DU to the customers and to do adulteration in any manner, which may be imposed   to disconnect the supply and to terminate the dealership. Subsequently these two tanks were disconnected by the Charge man of the respondent’s dept., as per the instruction given by respondent no. 2, and as such, the said allegation can not become the basis of termination of Dealership

4
16-8-2006.
The maintenance department of Indian Oil Corporation inspected the petitioners’ Dhirpur Multi Center filling station on 16-8-2006. The aforesaid inspection was made by the Divisional Engineer and the leakage   was repaired by the charge Man deployed for the aforesaid purpose. It is submitted that the Divisional  Engineer  in furtherance  of the aforesaid inspection blocked the interconnection  and  accordingly sealed the same and submitted a report indicating therein  that the place of the pump  is  satisfactory  and correct  and acquit ant  in its  measurement

5
5-3-2007
The petitioner made the request from the department to refund the aforesaid amount. It was submitted that in case of making no return of the said amount the petitioner may be compelled to submit a complaint to the Divisional Manager. It is submitted that in spite the aforesaid complaints no heed to the request of the petitioner was made by the Divisional Manager then the petitioner approached to the Member of the Parliament Shri Chandra  Bhushan  Singh  elected  from his own District Farrukhabad.  It is submitted that Shri Chandra Bhushan Singh raised the aforesaid question in the Parliament about the aforesaid irregularity committed by the department.  The true copy of the letter issued to Shri Chandra Bhushan Singh, Member of Parliament by the  Ministry of  the State for Petroleum and Natural  Gas  and the reply submitted by the General Manager of the Indian Oil Corporation Ltd.  On 5-3-2007 to the under Secretary of Government  of India, Ministry  of Petroleum and Natural Gas

6
24-5-2007
It is alleged The inspection of the petitioners’ filling station filling station  took place at 1.00 p.m. on 24-5-2007 and the inspection team without  giving  any opportunity of being heard to the proprietor /petitioners’ firm, and, ,without looking the record available in the department in respect of allegation leveled against the petitioner were fully lying with their own department suggesting no dereliction and irregularities committed by the petitioner,   suspended  the licence 

7
19-6-2007
The  Weight and Measurement Officer who is required to verify  the processing of the  seal of  high speed diesel  and Weight and Measure seal  as reported  on 19-6-2007 itself that the  high speed diesel Duary seal  on its meter  was not tampered  and in the said inspection there was no tampering   on  with the read wire. It was also directed to  put a set on the machine and nothing was found  adverse which could have been resultant in non-supply of the  high speed diesel and motor  spirit to the  retail  outlet by suspending the license.

8
21-6-2007
There is no provision of conducting  the post-decisional  haring in the matter and the  time  prescribed for issuance of the suspension order to submit  the reply in furtherance of the post decision suspension order dt.24.5.2007 notice issued on 12.6.2007.  However, after lapse of more than  20 days   a post decision suspension order dt.24.5.2007 notice issued on 12-6-2007 which was  duly replied by the petitioner  on 21-6-2007.

9
19-7-2007
The petitioner  submitted  his reminder  on 19-7-2007 and 2-8-2007, wherein the petitioner  categorically  submitted that about 11000 liter of the high speed diesel  amounting  to Rs. 3.5 lacs and the Petrol  in the quantity of 3,500 liter amounting  to Rs.  4,400 and mobile oil amounting to Rs. 2 lacs has been sealed apart from depositing  of Rs. 2,30,000/- with the  depot. It was stated that the petitioner firm is suffering the loss of Rs. 9 lacs as the aforesaid amount has been blocked on account of the impugned order.


10
6-12-2007
Feeling aggrieved by the issuance of the suspension order the petitioner filed a writ petition n. 42692 of 2007. It is submitted that  this Hon’ble Court was pleased to pass the  order on 6-12-2007

11
20-12-07
It was brought before this Hon’ble Court first time by filing  a supplementary affidavit being sworn by the clerk of the counsel appearing in the matter on behalf of the Indian Oil Corporation  it was stated that there has been the termination of the dealership of the petitioner on 20-12-2007.The onus was shifted upon the respondent to record a finding regarding the veracity of the  truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the post decision suspension order dt.24.5.2007 notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order saying that the report dated19.6.2007 as an after thought by the petitioner.

12
27 .8.2008
An application seeking withdrawal of the amendment application subject to the liberty granted to the petitioners to challenge of termination passed on 20-12-2007 has been filed by the petitioner in Writ Petition No. 42692 of 2007.

13
10.9.2008
The petitioners filed the writ petition no. 47182 of 2008, in which the direction issued to petitioner to approach the Appellate authority, and on ground of alternative remedy, writ petition was dismissed.

14
1.10..2008
The petitioners filed the departmental appeal by taken all such ground in compliance of the Judgement dated 10.9.2008 and the direction given in writ petition no. 47182 of 2008, the departmental appeal preferred to the Executive Director Of Indian Oil Corporation has not been Decided, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines

15
13. 11.2008
The petitioners through his representative went to the office of the appellate authority on 13.11.2008 at G-9 , Ali yavar Jung Marg, Bandra East, Mumbai, but it was told that the decision in the appeal filed by the petitioners shall be taken   within 90 days and the appeal shall be decided after receiving the comments from the office of the respondent no. 1 and 2.

16
2.1.2009
The appellate authority has stated on the subsequent visit on 2.1.2009, that the fault is attributable on the part of the respondent no. 1, the decision shall be communicated in this regard from the union of India and as such the petitioner may approach to the Secretary, Petroleum and Natural Gas Department, Government of India, New Delhi of the Union of India.

17
10. 1. 2009
It was only on 10. 1. 2009 that the petitioner came to know that the contractor for dismantle of retail out let has already being deployed on 6. 10. 2008. The true copy of letter dated 6.10.2008, copy of which is supplied to the petitioner on 10.1 2009. It is Submitted that  about 11000 liter of the high speed diesel  amounting  to Rs. 3.5 Lacks and the Petrol  in the quantity of 3,500 liter amounting  to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the  depot,

18
16.1.2009
A representation has been send to the union of India on 16.1.2009 Containing all such facts for the redressal of the grievances raised in this regard and it has been submitted that the order passed on 20.12.2007 may kindly be set aside and the directions may be issued   to maintain the supply, as the order of termination of dealership is based upon the malafide intention of the respondent No. 1.

19
16.1.2009
All the charges leveled against the petitioners were totally baseless and having no corroborating evidence in support of the aforesaid charges as the petitioner demonstrated that subsequent to the aforesaid inspection , if the officials of the W &M department have recorded the inconsistent finding to the charges leveled against the petitioners , the onus was shifted upon the respondent to record a finding regarding the veracity of the  truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the show cause notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order.

20
3.2.2009
That in the writ petition No. 5878/2009,  the petitioners were challenging the order given to the contractor for dismantle of retail out let has already being deployed on 6.10.2008 and order dated 10.1.2009 passed during pendency of departmental appeal against the order dated 20.12.2007(Annexure No.10 )as per order in  Writ petition No. 47182 of 2008. It is submitted that  the departmental appeal preferred to the Executive Director Of Indian Oil Corporation was not been decided by that time, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines.



21
9.2.2009
  That the harassment was done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009.



22
21.2.2009
That subsequently in the letter received on 21.02.2009, the intimation of the change date has been communicated to the petitioner at the address of the retail outlet but by that time the petitioner along with his counsel had already left for appearing at World Trade Centre, Baber Road, New Delhi along with the member of the parliament Sri Chandra Bhushan Singh (M.P.) from District Farrukhabad for demonstrating the malafide intention of the respondent no. 1 in passing the order of  termination of the dealership.



23
22.5.2009
That the petitioner received another letter having the date for his presence before the appellate authority dated 22.5.2009 fixing 3.6.2009 as the date fixed much after the expiry of time period of 90 days, as prescribed as outer limit for deciding the appeal preferred by the petitioner on 1.10.2008, as per the request made by the counsel for the respondent No. 1,2, to this writ petition.



24
27.6.2009
The petitioners were informed that there will be further inspection on 27.6.2009 and the intimation to this effect was given by Mr. Kukreja on the mobile of the dealer on 24.6.2009. There after the photocopies of the register maintain at the retail out let were taken by Rahul Jaidrath posted as   ARMS Agra along with two other officers, as nothing was found to established the tempering of the W.M. SEAL of  DUs –HSD (of AVERY MAKE) or in the sealing wire passed through holes even on 27.6.2009.These officers after the aforesaid inspection have assured the petitioner No. 2, but directed to meet Mr. Kukreja and Shri H.S. Bedi . It is submitted that there after the demand of an exorbitant money was made to resume the supply, when ever the petitioners approached to the regional office at Agra. The petitioners could not offer any bribe and lastly as a repercussion of it, their appeal has been dismissed.



25
21.7.2009
The order of appellate authority is perverse, obsolete and malafide, which has been passed contrary to the evidences on record and in excess of the power vested with appellate authority. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was  any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank) The petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. That the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked.



26
3.8.2009
That on account of this inadvertent mistake and ignorance, the counsel for the petitioner could not remain present at the time of taken up the matter and as such the  writ petition No. 5878/2009 has been dismissed due to the inadvertent mistake of counsel for not being informed regarding the transfer of listed matter of court no. 2 to court no. 32 on 3. 8. 2009. The proposed amendment and the application for recall of the said order passed on 3.8. 2009 was prepared on 24.8.2009 and 27.8.2009 respectively  duly supported with the affidavit, but the same were not filed on account of the fact that certain observation in the  writ petition No. 5878/2009  has been made on account of the fact of deciding the appeal by appellate authority.












Dated- 10.9.2009                                                                    (YOGESH KUMAR SAXENA)
                                                                              ADVOCATE HIGH COURT
                                                                            ( Counsel for  the Petitioner)
                                                             Chamber No. 139, High Court, Allahabad





      IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
            CIVIL   MISC.  STAY APPLICATION NO.                      Of 2009
       (U/S 151 C.P.C read With Chapter XXII Rule 1 Of Allahabad High Court Rules, 1952)
  CIVIL MISC. WRIT PETITION NO.                                          OF 2009
(Under Article 226 of the Constitution of India)
              (District –Farrukhabad)
1.         M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad.
2.         Shri Bhagwan Baksh Singh son of Shri Abiran Singh, proprietor, M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad,R/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad.            …..           Petitioners
                                                 Versus
1.         Indian Oil Corporation Ltd  through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II,  Noida.
2.         Sales Manager, Marketing Division, Indian Oil Corporation Ltd., Agra Division, Agra.
 3.       Executive Director(RS) Indian Oil corporation Limited , G-9, Ali yuvar Jung Marg, Bandra ( East), Mimbai- 400 051            …..                Respondents
To.
    The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
    The humble writ petition of the above-named petitioner most respectfully showed as under: -
1.    That the full facts and circumstances of the case have been submitted in the writ petition, it is expedient in the interest of justice that this Hon’ble Court  may graciously be pleased to stay the operation of the impugned orders having of termination of dealership of the petitioner passed on 21.7.2009(Annexure No.20 )  having affirmation of order of termination of dealership of the petitioner’s retail outlet  and order  dated 20.12.2007(Annexure No.10 ) and the respondents may be directed to maintain the  regular supply of HSD and MS and other lubricants to the petitioner, as justice may be done with the right of petitioner.
                                               PRAYER
It is, therefore, most respectfully prayed that Hon’ble Court may graciously be pleased to stay the operation of the impugned order 21.7.2009 (Annexure No.20)  having affirmation of the order of termination of dealership of the petitioner’s retail outlet  and order  dated 20.12.2007(Annexure No. 10), termination of dealership of the petitioner and the respondents may be directed to maintain the regular supply of HSD and MS and other lubricants to the petitioner, as justice may be done with the right of petitioner.
Dated- 10.9.2009                                                        (YOGESH KUMAR SAXENA)  Advocate
                                                                            ( Counsel for  the Petitioner)
                                                             Chamber No. 139, High Court, Allahabad





IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
CIVIL MISC. WRIT PETITION NO.                                          OF 2009
                                    (Under Article 226 of the Constitution of India) 
                                                                               (District –Farrukhabad)
1.         M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad.
2.         Shri Bhagwan Baksh Singh son of Shri Abiran Singh, , proprietor, M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, R/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad.            …..           Petitioners
                                                 Versus
1.         Indian Oil Corporation Ltd  through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II,  Noida.
2.         Sales Manager, Marketing Division, Indian Oil Corporation Ltd., Agra Division, Agra.
 3.       Executive Director(RS) Indian Oil corporation Limited , G-9, Ali yuvar Jung Marg, Bandra ( East), Mimbai- 400 051            …..                Respondents
To.
                 The Hon’ble the Chief Justice and his other companion Judges of the aforesaid Court.
                      The humble writ petition of the above-named petitioner most respectfully showeth as under: -
1.    That this is the first writ petition and no other writ petition has been filed or pending against order dated 21.7.2009(Annexure No. 20),  having affirmation of the order having affirmation of order of termination of dealership of the petitioner’s retail outlet  and order  dated 20.12.2007(Annexure No.10), termination of dealership of the petitioner, and the respondents may be directed to maintain the regular supply of HSD and MS and other lubricants to the petitioner, challenged in the present writ petition. The petitioners have not received any caveat application.
2.    That by means of the present writ petition the petitioners are challenging the the impugned orders having of termination of dealership of the petitioner by the orders passed on 27.7.2009 (Annexure No.20 )  having affirmation of order dated 20.12.2007(Annexure No.10) passed by appellate authority  even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines and the respondents may be directed to maintain the  regular supply of HSD and MS as the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked, as justice may be done with the right of petitioner.
3.    That the petitioner No. 1 and the petitioner No. 2 are the same person. Both of them are impleaded in Juristic capacity as well as in personal capacity, as the submission made in support of writ petition may be enumerated in consonance with requirement to assail the impugned order on its merit to demonstrate the malafide intention. There has been the violation of principle of natural justice causing prejudices in passing the pre medicated order dated 20.12.2007.
4.    That fraud and justice never dwell together as is being done by the respondent no. 1 otherwise, while passing the impugned order in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power. This may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of the submission of  realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD). Just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by Dy. General Manager, in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in order dated 20.12.2007 , General Manager, himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).
5.    That It is submitted that when some retail outlet continued to remain at a distance of 440 Kms. From the date of its installation and commission thereafter in 1998 upto 2003, instead of saying that a license was  issued to the petitioner and it was commissioned  in the year of 1976(Vide LOI R/PNS/1621 dated 16/5/1976)  that  how the destination of Mohammadabad does would have been re-certified and is being reduced to 397 Kms. In 2003. There was another discrepancy in the reply made to the Under Secretary to the Government of India in the said report that the dealers commission does not depends on the RSP of the product and the effect of higher RT cane (round trip kilometer) in the price is taken care by the higher RSP fixed for the location, but it does not have any effect in the dealer’s commission received by the dealer.
6.    That   instead of making any refund of the excess charges realized by having the effect directly due to the higher billing prices, the matter was subsided by saying that the same has the direct bearing in RSP of the location. The explanation given in this regard to the quarry made by the Member of Parliament has the direct bearing on the issuance of the order of termination of the dealership of the petitioner’s retail outlet. Thus there has been a legal malice lying in the functioning of the respondent no.1 in due discharge of its liability and as such the  orders passed on 20-12-2007 and 21.7.2009 terminating the dealership of the petitioners has been passed with the malafide intention which smacks the capriciousness of discretionary power by transgression of the statutory functioning assigned to the respondents in furtherance of the power given to them by the Legislation the  orders dated 20.12.2007 and 21.12.2009 are  liable to be set aside.  
7.     That as such a false reply was submitted to the Union of India, the matter pertaining to their functioning conducted in realization of the excess money of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD) was enquired by the member of parliament from govt. of India and thus passing of impugned order is contrary to its objectives and passed with oblique motive and extraneous consideration.
8.     That Indian Oil corporation is a Govt. Company having its financial and administrative Control of the Govt. Of India and Union of India has the pervasive control upon the functioning of the Respondents and as such it is an instrumentality of the state under Article 12of Constitution of India.
9.    That the factum  matrix  pertaining to the controversy involved is submitted  hereinafter that the  petitioner is  an authorized  dealer of  Indian Oil Corporation for supply and seal of high speed  diesel and motor spirit (Petrol)  and other lubricants  as per the terms and condition of the agreement  executed between the parties in  pursuance  thereof, a license was  issued to the petitioner in the year of 1976(Vide LOI R/PNS/1621 dated 16/5/1976) and from such  a long time the petitioners’ firm  namely Dhirpur Multi Center  situated at Mohammadabad, District Farrukhabad was conducting  its business  of sell of high speed diesel  motor Spirit  and other lubricants  supplied to the petitioners on the basis of his authorized dealership  given by Indian Oil Corporation  without any complaint from any  member of the public. 
10.  That the maintenance department of Indian Oil Corporation inspected the petitioners’ Dhirpur Multi Center filling station on 16-8-2006. The aforesaid inspection was made by the Divisional Engineer and the leakage   was repaired by the charge Man deployed for the aforesaid purpose. It is submitted that the Divisional  Engineer  in furtherance  of the aforesaid inspection blocked the interconnection  and  accordingly sealed the same and submitted a report indicating therein  that the place of the pump  is  satisfactory  and correct  and accurate in its  measurement.  The copy of the report which was forwarded to the department after the inspection of the Divisional Engineer on 16-8-2006 is being filed herewith and marked as Annexure no.1 to this writ petition. 
11.  That the filling station of the petitioner is situated at a distance   of  210 Kms. From Agra and the total distance of  both the sides from Agra to Mohammadabad is about 420 Kms. The petitioner was asked to deposit the details of the distance  calculating  440 Kms. on both the sides.  Since the aforesaid calculation of the department was a wrong calculation  and the  charges were being made by calculating  the wrong distance since 1997 from the petitioner and  in this process  according  to the calculation made by the petitioner, he had deposited excess  money  of Rs. 1,98, 435/- to the department.
12.  That the petitioner made the request from the department to refund the aforesaid amount. It was submitted that in case of making no return of the said amount the petitioner may be compelled to submit a complaint to the Divisional Manager. It is submitted that in spite the aforesaid complaints no heed to the request of the petitioner was made by the Divisional Manager then the petitioner approached to the Member of the Parliament Shri Chandra  Bhushan  Singh  elected  from his own District Farrukhabad. The true copy of reply submitted by the General Manager of the Indian Oil Corporation Ltd.  on 5-3-2007 to the under Secretary of Government of India, Ministry of Petroleum and Natural Gas is being filed herewith and marked as Annexure no. 2 to this writ petition.
13.  That it is submitted that Shri Chandra Bhushan Singh raised the aforesaid question in the Parliament about the aforesaid irregularity committed by the department.  The true copy of the letter dated 26.4.2007 issued to Shri Chandra Bhushan Singh, Member of Parliament is being filed herewith and marked as Annexure 3 to this writ petition.
14.  That on account of the aforesaid matter being highlighted, the respondent no.1 became annoyed with the petitioner. The respondents constituted a committee of three members namely Rajesh Sharma, AMRS, Rahul Jaidrath AMRS Agra and one of its members as Pankaj Kumar, who were not competent to make the inspection according to the Marketing guidelines of 2005.
15.  That it appears the inspection of the petitioners’ filling station filling station  took place at 1.00 p.m. on 24-5-2007 and the inspection team without  giving  any opportunity of being heard to the proprietor /petitioners’ firm, and, ,without looking the record available in the department in respect of allegation leveled against the petitioner were fully lying with their own department suggesting no dereliction and irregularities committed by the petitioner,   suspended  the license  immediately  there after on 24-5-2007 itself.  A true copy of the suspension order passed on 24-5-2007 is being filed herewith and marked as Annexure no.4 to this writ petition.
16.  That according  to the guidelines  enumerated in the  relevant provision  in Chapter  5 the inspection of the retail outlet  can only be done by the  field officer in  ‘C’ grade and  above in the Divisional /Territory /Regional /office within  the jurisdiction once  in a year  under the random  inspection.  There was no power conferred upon the respondent no.2 to constitute the committee comprising of the three members, all of them were not the officer in the ‘C’ grade in the divisional level. The  guidelines  enumerated in the  relevant provision  in Chapter 5 the inspection of the retail outlet  can only be done by the  field officer in  ‘C’ grade and  above in the Divisional /Territory /Regional /office within  the jurisdiction once  in a year  under the random  inspection are being filed herewith and marked as Annexure no. 5 to this writ petition.
17.  That the Joint  team  empowered to make  the inspection  is only empowered to do so  on the direction of the Ministry  on behalf of the Union of India or by the management of the  Oil companies , but no such power  has been  conferred as per the regulation 5.2 of Chapter 5  of the Marketing Discipline  Guidelines , 2005 and as such the  order of suspension passed on 24-5-2007and the subsequent impugned order are in itself  illegal and void.
18.  That the adulteration is defined under the provisions of 6.1.1 of Chapter 5 of the aforesaid guidelines which could have been the ground for the suspension of the license and there after termination of dealership.  But no such ground has been taken while passing the suspension order on 24-5-2007 and as such the issuance of the suspension order was beyond the scope and purview of the power conferred in the aforesaid guidelines.
19.  That the  other ground which was taken  was in respect of the application of  Rule  8 of U.P. High Speed  Diesel  Oil and light diesel oil (Maintenance  of supply and Distribution) Order 1981, wherein the period of the suspension is  prescribed  and the requirement  of providing  an opportunity  of being heard is contemplated  as the condition precedent  prior to  issuance of the suspension order pending inquiry, which was already lapsed, while passing the termination order without application of independent mind by the respondent no. 1 to the reply submitted by petitioner on 21.6.2007 .
20.  That even  the guidelines  prescribed in sub clause  III in the booklet  of the Indian Oil Corporation  effective w. e. f. 1st August, 2005 till the date of issuance of the suspension order does  not  empowered  for  taking  the penal action  without  obtaining  the  explanation from the dealer. It is provided that the time stipulated in the show cause is for getting the reply received from the owner of the retail outlet and if the answer is received unsatisfactorily then only the penal action of suspending the license by issuance of the suspension order could have been passed by the competent authority.
21.  That the  Weight and Measurement Officer who is required to verify  the processing of the  seal of  high speed diesel  and Weight and Measure seal  as reported  on 19-6-2007 itself that the  high speed diesel -DUs seal  on its meter was not tampered  and in the said inspection there was no tampering   on  with the read wire. It was also directed to put a set on the machine and nothing was found adverse which could have been resultant in non-supply of the high speed diesel and motor spirit to the retail outlet by suspending the license.  The true copy of the report of the Weight and Measurement Officer dated 19-6-2007 is being filed herewith and marked as Annexure no.6 to this writ petition.
22.  That there is no provision of conducting the post-decisional haring in the matter and the time prescribed for issuance of the suspension order to submit the reply in furtherance of   has not been done.  However, after lapse of more than 20 days   a notice has been issued on 12-6-2007 which was duly replied by the petitioner on 21-6-2007. The true copy of the notice dated 12-6-2007 and the reply submitted by the petitioner on 21-6-2007 are being filed herewith and marked as Annexure no.7 and 8 to this writ petition.
23.  That the petitioner  submitted  his reminder  on 19-7-2007 and 2-8-2007, wherein the petitioner  categorically  submitted that about 11000 liter of the high speed diesel  amounting  to Rs. 3.5 Lacs and the Petrol  in the quantity of 3,500 liter amounting  to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the  depot. It was stated that the petitioner firm is suffering the loss of Rs. 9 lacks as the aforesaid amount has been blocked on account of the impugned order.
24.  That the petitioner had already requested  for making the supply of the seal  from the headquarter  as he may take  the sample  from the tanker  at the time  of its arrival which may bear  the signature of the driver , however, no heed was provided to the  aforesaid request made from the headquarter nor the inspection team has taken note  into their account before taking the sample from the retail outlet of the petitioner.
25.  That the job assigned to the inspection team was only confined to submit its report and they were not empowered to take the final decision in the matter for suspending the license. It is  the basic  elementary  principles  that the inspecting team  cannot  become  the judge  in its own cost as no one may become  the judge to adjudicate  the matter  placed by the same  authority or  he may take action  on its  suo motto  motion .  Thus the power exercised  by the inspecting  team  in suspending the license was  contrary to the object sought to be achieved and there was extraneous  reason with oblique motive which demonstrate  the malafide  intention  of respondent no.1 and 2 and as such the termination order has been passed wholly without jurisdiction and the same was void ab initio.
26.  That as per the application of the provision with a particular reference to Rule 8 of the U.P. High Speed Diesel Oil and Light Diesel Oil (Maintenance  of Supply and Distribution ) Order, 1981 is  concern it was only  stated that the order of suspension  was not passed by the licensing authority but by the corporation authority as per the provision contemplated  in the Marketing  Discipline  Guidelines of 2005.
27.  That feeling aggrieved by the issuance of the suspension order the petitioner filed a writ petition n. 42692 of 2007. It is submitted that this Hon’ble Court was pleased to pass the order on 6-12-2007. The true copy of the order passed on 6-12-2007 is being filed herewith and marked as Annexure no. 9 to this writ petition.
28.  That the evasive reply was submitted by the contesting respondents in their counter affidavit filed in the writ petition no. 42692 of 2007 filed against the issuance  of the suspension order on 24-5-2007, which is pending.
29.  That it was brought before this Hon’ble Court first time by filing a supplementary affidavit being sworn by the clerk of the counsel appearing in the matter on behalf of the Indian Oil Corporation it was stated that there has been the termination of the dealership of the petitioner on 20-12-2007 stating and falsely writing therein the  order has been served under postal certificate. The true copy of the impugned order passed on 20-12-2007 is being filed herewith and marked as Annexure no.10 to this writ petition.
30.  That at the very out set , it is submitted that the petitioners did not get even the whisper of the order passed by the respondent no. 1 on 20.12.2007, nor the said order was ever posted through registered post or any other post as alleged in the order annexed by stating the fact that it was sent under postal certificate. The order of termination of license has not been communicated in the manner prescribed under Law. Thus the termination of dealership order is illegal and passed with legal malice.
31.  That neither any show cause notice was issued, nor any opportunity of hearing was provided to the petitioners prior to passing of the order dated 20. 12. 2007. It is not mentioned in the order that any show cause notice was issued prior to passing of such order and as such the order is passed in violation of the principle of natural justice entailing the said order as void ab initio.
32.  That a bizarre exercise of acquiring the power to dispense with the supply of the High Speed diesel/ motor spirit to the retail out let of the petitioner without any justification and account of grudge for raising the dispute before the parliament and as the principle of the natural justice has been violated as such the same entailing the said order as void ab initio.
33. That an application seeking withdrawal of the amendment application subject to the liberty granted to the petitioners to challenge of termination passed on 20-12-2007 has been filed by the petitioner. The Hon’ble court has been pleased to grant the permission to withdraw the proposed Amendment Application with the liberty to file a fresh writ Petition. The true copy of the order passed by this Hon’ble Court on 27 .8.2008 is ANNEXURE NO. 11 to this writ petition.
34.  That there after the petitioners filed the writ petition no. 47182 of 2008. It is submitted that  despite the direction given in writ petition no. 47182 of 2008 to avail alternative remedy and dismissal of the said writ petition on the ground of alternative remedy, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines enforceable w. e. f. 1st August,2005, in order to demonstrate the illegality, violation of the principle of Natural Justice and  malafide intention of respondents in passing the un-served premeditated order of termination dated 20.12.2007 and order of dismantle of retail out let subsequently passed after the judgement dated 10.9.2008.  The true copy of the judgment dated 10.9.2008 is filed herewith and marked as Annexure no.12 to this writ petition.
35.  That by the bare perusal of the correspondence  made by the respondent no.1 in its order dated 24-5-2007, it is submitted that the inspection report conducted on 19-6-2007 having the request for inspection of the petitioners retail outlet in furtherance of the application dated 15-6-2007 by the team comprising of the members of the  Measurement Department, discloses the facts contrary to the allegation leveled against the petitioner  in respect of the contents of the order dated 24-5-2007 as on 19-6-2007 by the team comprising of the officials of Weight and Measurement Department has clearly recorded that the weight measurement seal  of HLD( D. V. meter assembly) has not been found  tampered , but there was the mark of crack on the said seal, which could have been done on account of the variation of the temperature in the open exposure to the sun  light and the rainy water because the machine is installed without any shed upon the said retail outlet.
36.  That the inspection team on 19-6-2007 found that tampering has not been done with the seal and the wire inside there and it was recommended to get the replacement of the seal as it may be broken in two pieces by the efflux of time. It has also been recommended that in order to avoid any untoward incident regarding the alleged detection of the irregularity on account of the crack in the seal and looseness of the wire, the recommendations for having a permanent shed upon the retail outlet is required.
37.  That it has been categorically recorded that there has not been any tampering with the totalizer. This is the contents of the inspection report being conducted on 19-6-2007 which was not taken into consideration, while passing order on 20.12.2007. Thus the order passed on 20.12. 2007, which is the basis of the termination of the dealership of the retail outlet of the petitioner, is in itself based on the inconsistent finding regarding the discrepancy observed in the order. Thus the  order passed on 20.12.2007 of termination of dealership is based upon the false and baseless allegations which are inconsistent with the evidence submitted by the petitioner in respect of the contents of the report submitted by another inspection team on 19-6-2007 itself.
38.  That the petitioner in furtherance of the notice issued on 12-6-2007 had submitted on 21-6-2007 that the allegation leveled in para 1 regarding one every make (HSD-DU) was found connected to two tanks (one 20 Kl. And 15 Kl. ) with the help of two walls fitted on the top of the tanks.  In reply to the aforesaid charge the petitioner made the categorical deny in his letter that the charge man of the respondent department was disconnected the aforesaid interconnection and the landline was cut down and as such there was no question of having the interconnection between the two tanks (one of 20 Kl. And another of 15 Kl. ),  for which the allegation of the irregularity was reported by the aforesaid team during the inspection made on 24-5-2007 and the charges leveled in the notice issued on 12-6-2007.
39.  That as per the allegation leveled in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 having the charge leveled therein that W & M seals of HSD-DU every make on meter assembly found broken, for which the reply was given that the same was not broken but there had been the crack upon the aforesaid seal, which was sought to be replaced by the department on the persistent request made by the petitioner in this regard.
40.  That It is submitted that if W& M seal of HSD-DU every make on meter assembly was found broken how does in the inspection made on 19-6-2007 only crack could have been found by the officials of the Weight and Measurement Department. Thus the allegation leveled in furtherance of the charge no. II recorded in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 was based on the false allegation which is in itself contradictory as per the report submitted by the inspection team of the Weight and Measurement Department on 19-6-2007.
41.  That charge leveled that one HSD-DU was connected to two tanks of the supply of HSD-DU (20 Kl &15Kl ) may not be related with any irregularity in maintaining the supply of HSD-DU to the customers and to do adulteration in any manner, which may be imposed  after disconnection of  the supply and to terminate the dealership of the petitioner No. 1 as the supply in two tanks is of the same commodity and if the two tanks were found Inter connected as per the instructions issued earlier by the official of the respondent No. 1 and 2, but subsequently these two tanks were disconnected by the Charge man of the respondent’s dept., as per the instruction given by respondent no. 2, and as such, the said allegation can not become the basis of termination of Dealership of the petitioner No. 1, as the said charge is based on no evidence and  perverse finding.
42.  That in reply to the charge no. 3 leveled against the petitioner that the totalize seals of MS & HSD-DUs were not proper. The said charge was incorrect as there was the proper seal on the machine as per the report dated19.6.2007 of the Weight and Measurement Department which was annexed along with the reply submitted to the respondent no.2 on 21-6-2007.
43.  That in reply to the charge no. 4 regarding non-observation of the retention samples of MS & HSD which was not found available as per the contents written in the suspension order passed on 24-5-2007 and in the notice dated 12-6-2007, the categorical reply was made that the vacuolar sample were retain at the retail outlet but since there was no seal of the company available as the company seal was not  provided to the petitioners retail outlet, when the earlier seal after previous inspection  were already seized to remain in existence. The demand for getting the aforesaid seals was made on 13-5-2007, but the same were not made available to the petitioner’s retail outlet. Thus the charge no.4 was not made out in respect of the irregularity committed by the petitioner in furtherance of the notice.
44.  That in this manner all the charges leveled against the petitioners were totally baseless and having no corroborating evidence in support of the aforesaid charges as the petitioner demonstrated that subsequent to the aforesaid inspection , if the officials of the W &M department have recorded the inconsistent finding to the charges leveled against the petitioners , the onus was shifted upon the respondent to record a finding regarding the veracity of the  truthful meant of the contents of the inspection report dated 24-5-2007 and the contents of the show cause notice dated 12-6-2007 in the impugned termination of the dealership of the petitioners retail outlet’s order dated 20-12-2007 which has not been done in the impugned order. Thus the impugned order has been passed in a pre-medicated manner without assigning any cogent reason for having the foundation of the impugned order.
45.  That the malafide intention of the respondents No. 8 and 9 being the officials representing the corporation remained on account of the fact that the General Manager was made accountable in furtherance of the quarry made by Shri Chandra Bhushan Singh, Member of Parliament on the question of making the refund of an amount of Rs. 1,98,433/- charged from the petitioners’ outlet on account of the excess price to revision in round trip distance.
46.  That since  the order dated 20.12.2007, based upon ex-parte averments and allegation leveled in suspension order,  has been issued  without  giving  any show cause notice  by the  competent authority and  the products  are  being costs to the petitioner in due discharge of its functioning and thus since  the suspension order passed on 24-5-2007 and the impugned order are  having  the civil  consequences,  the same could not be passed without  affording any opportunity of being heard to the petitioner.
47.  That the other  ground which are enumerated  in the aforesaid guidelines are in respect of the short  delivery of the  product with  regard  to the weight  and measures  seal  intact and in case the Weights and Measures  seal  is tampered then only any penal action would have taken by the competent authority . Thus the issuance of the impugned order on 20-12-2007 has been also beyond the jurisdiction of the respondent no. 1.
48.  That  the dereliction in due discharge  of  observing the requirement pertaining to the non-adulteration  of the product and  tampering of the seal is not recorded  (as provided in the  aforesaid guidelines), while suspending the supply  at the retail outlet of the  petitioner and thereby terminating the dealership and thus the order of the termination is challenged  on the ground that it  could not be passed on the false and baseless allegation merely on the ground of suspicion in conducting the irregularity, which was not based upon any complaint of the customer  by the inspecting team, and was inspected  without taking  the approval of the  same from the  competent authority.
49.  That the order dated 20.12.2007 has been passed without giving any opportunity of being heard, nor  the reply submitted, in respect of query made, has been taken into consideration. Thus passing of impugned order is in violation of Principle of natural justice. The same is liable to set aside.
50.   That the Impugned order has been passed without application of mind and without even seeing the report dated 19.6.2007 submitted by the department of weight and measurement and as such the impugned order has been passed in an arbitrary manner.
51.  That passing of impugned order is contrary to its objective and passed with ulterior motive and to take the revenge as the petitioner has started demanding the refund of excess money and the question was raised in parliament, which annoyed the respondent no. 8 and 9, thus passing of impugned order is with legal malice and malafide intention.
52.  That the petitioners filed the departmental appeal by taken all such ground in compliance of the Judgement dated 10.9.2008 and the direction given in writ petition no. 47182 of 2008, the departmental appeal preferred to the Executive Director Of Indian Oil Corporation has not been Decided, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines enforceable w. e. f. 1st August,2005. Passed. The true copy of the memo of the said appeal filed on 1.10..2008 is filed herewith and marked as Annexure no.13 to this writ petition.
53.  That petitioners through his representative went to the office of the appellate authority on 13.11.2008 at G-9 , Ali yavar Jung Marg, Bandra East, Mumbai, but it was told that the decision in the appeal filed by the petitioners shall be taken   within 90 days and the appeal shall be decided after receiving the comments from the office of the respondent no. 1 and 2. However the appellate authority has stated on the subsequent visit on 2.1.2009, that the fault is attributable on the part of the respondent no. 1, the decision shall be communicated in this regard from the respondent and as such the petitioner may approach to the Secretary, Petroleum and Natural Gas Department, Government of India, New Delhi of the Union of India.
54.  That the malice of the respondent is demonstrated from the fact that the order dated 20.12.2007 was not even sent to the petitioner and a note has been made that the same has been send under certificate of posting in the hand writing of some one. It is submitted that that the corporation equipment , stationary & other materials at the R.O premises shall be taken over by our local field officer in the same order , which demonstrate the malafide intention of respondent no. 8 in passing the said order. It was only on 10. 1. 2009 that the petitioner came to know that the contractor for dismantle of retail out let has already being deployed on 6. 10. 2008. The true copy of letter dated 6.10.2008, copy of which is supplied to the petitioner on 10.1 2009, is filed herewith and marked as Annexure no.14 to this writ petition.
55.  That the petitioner already  submitted  that about 11000 liter of the high speed diesel  amounting  to Rs. 3.5 Lacks and the Petrol  in the quantity of 3,500 liter amounting  to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the  depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 6. 10. 2008.
56.  That it is submitted that there after a representation has been send to the union of India on 16.1.2009 Containing all such facts for the redressal of the grievances raised in this regard and it has been submitted that the order passed on 21.12.2007 may kindly be set aside and the directions may be issued   to maintain the supply, as the order of termination of dealership is based upon the malafide intention of the respondent No. 1. The true copy of representation dated 16.1.2009 submitted to the union of India is filed herewith and marked as Annexure no.15 to this writ petition.
57.  That the  petitioner is submitting the relevant extract  of the Marketing Discipline Guidelines  which have been made effective w. e. f. 1st August 2005 by  all the major public  sector oil marketing companies. The relevant extract of the aforesaid guidelines as enumerated in Chapter 2, 4 ,6 and appendix A are being filed herewith and marked as Annexure no.16 to this writ petition.
58.  That in order to provide the substance to the argument on the point of malafide intention of the answering respondents it is submitted that the mandatory requirement of making the inspection of the retail outlet by the  inspection team is in the presence of the dealer or his representative after obtaining the signature of the dealer, which has  not been  done. The suspension of the retail outlet belonging the petitioners was immediately done in such unauthorized manner on account of the fact that the questionnaire was raised by the member of the Parliament in the regard to the excess realization of the payment of Rs. 198435/- from the dealer by calculating the wrong distance of the retail outlet by the official of the Indian Oil Corporation and furnishing the incorrect reply to the Government of India in furtherance of the said question raised during zero hours in the proceedings of the parliament.
59.   That the provision of filing the department appeal and disposal of the same within the out limit within a period of 90 days are transcribed as under –
6.3 (Notes) iii  – Every penal action would be taken only after a show cause notice is issued and giving the dealer a minimum time of 7 days to submit his explanation. If the dealer’s reply is not received within the time stipulated in the show cause notice, or if the reply received is found to be unsatisfactory, penal action as given in Appendix-I to be taken. No penal action to be taken if the dealer’s explanation is found to be satisfactory.
iv.  The decision taken on action against the dealer based on the reply received from him for the show cause notice has to be communicated to the dealer in writing and this should be a speaking order. In the event of termination, the dealer, within 30 days of the Order, will have the right to appeal before the appropriate authority who will be empowered to decide in the matter. The appeal must be disposed of within 90 days from the date of the appeal. The appropriate authority to hear the appeals shall be by an office not below the rank of Executive Director.
V. The cycle of calculating second and third instance shall be five years starting from the date of first irregularity. In other words, if an irregularity is established as on date, records of previous 5 year period from this date will be examined to determine whether the present irregularity is the first, second or third instance of irregularity.
60.  That the only charge, out of the four charges leveled against the petitioners, for termination of this dealership is on account of the fault not attributable on the part of the petitioners but despite the demand for the replacement of the cracked weight and measure seal which was found at the time of the alleged inspection on 24.5.2007 in absence  of mandatory requirement of conducting such inspection, which could be done only in presence of dealer or his representative; and also in presence of the official of the weight and measure department; but the fault and negligence attributed on the part of the official of the Indian Oil Corporation; and without doing any enquiry in the respect of the said dereliction; as to whether the seal of weight and measurement of the one of D Us-HSD ( of Avery make ) was actually observed to be the broken; or it was having crack, the order of the termination of the dealership has been done in the unauthorized manner. The provision of rectification of the defect in the dispensing unit is provided in clause 4.3 of the chapter pertaining to the maintenance of the company equipments at retail outlets.
61.  That as per the guidelines the penal action of non supply of the commodity after the inspection made on 24.7.2007 can not be done without taking prior explanation from the dealer as per their own guide lines 6.3(notes iii) and as the notice was issued subsequently on 12.6.2007 the order dated 24.5.2007 was illegal and void in itself.
62.  That guide line prescribed the maximum limit of 90 days in deciding the appeal as per guidelines 6.3 (notes  iv ), but despite the appeal filed on 1.10.2008 and the date was fixed on 9.2.2009 fixing 20.2.2009 and there after 19.2.2009 and on 22.5.2009 fixing 3.6.2009, but the departmental appeal is decided on 21.7.2009 i.e after more than9  months, instead of mandatory maximum period of 3 months.
63.  That there is no irregularity ever recorded in maintenance of the retail out let by any authority and there was no complained ever made since 1976 from the date of commission of retail out let and guidelines 6.3 ( notes V ) prescribed that this fact shall be mention in the order of punishment , but neither the punishing authority , nor appellate authority have taken the note to this provision , while passing the order of termination of dealership.
64.   That the petitioner is also quoting the provision pertaining to the prescribed guidelines for making such inspection as contemplated in  2.4.3, 4.3, 4.2,  6.1 (b), 5.2, 6.1 & 6.4, which  are reproduced as under –
2.4.3                             Joint Industry Team Members should collect samples from retail outlets irrespective of results of indicative/suggestive tests like Marker/ Furfural test, density test, stock variation filter paper etc. during joint inspections. These samples should be sealed and labeled as per Annexure S-3 and jointly signed by the dealer/his representative and the members of the Joint Industry Tema who are drawing the samples.

4.3       RECTIFICATION OF DEFECTS IN DISPENSING UNITS / PIPELINE / TANKS
a)         In case the Weights & Measures seal is found to be broken, the Company’s Maintenance Representative shall inform the concerned Company Official for further action and incorporate the same in the Pump maintenance Report, which should be duly singed by the dealer as well. 
4.2.1.1                  MAINTENANCE OF PUMPS AND OTHER EQUIPMENTS
a)         While the Oil Company shall attend to breakdown maintenance of the Dispensing Pumps and other equipments belonging to the Oil Company, it shall be the responsibility of the dealer to ensure that these equipments are handled in just and proper manner and day to day upkeep are carried out. In case of any breakdown, the same shall promptly be informed by the dealer to the Oil Company.              
6.1 (b)   Sales and supplies of all products to be suspended immediately till such time investigations are completed. Meter and dip readings should be recorded in the Inspection Report duly signed by the Dealer or his representative together with rubber stamp of dealership and each page of the inspection report shall be initialed by Inspecting Officer and Dealer/Dealer’s representative. Dispensing Pumps and Tanks should be sealed. 
                                   
65.  That Fraud is committed by the respondent no. 2 in passing the impugned order, as the responsibility was lying upon his officials to replace the crack seal of one of the DUs –HSD (Of Avery make), (which is established as per the Inspection Report by the weight and measurement officer made on 19.6.2007), as the said charge is based on no evidence and perverse finding.
66.  That the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005. In the present case, neither the inspection is being done in presence of the dealer or his representative nor has the seal of the dealer been taken by the inspection team in their report. The inspection was done by the team of three officers, who were not empowered to have such inspection. It was done in absence of any official of weight and measurement department. It has not been done in furtherance of any complaint from the public, or by the officials of the Government agencies. No irregularity was ever found by any official of the Indian Oil Corporation since 1976, when the present retail out let has been sanctioned.   
67.  That it is taken note of the fact that weight and measure seal of the dispensing unit was not broken, but CRACKED & totaliser seals of another dispensing units were in same, as they were put …….. Since seals were out of stock with Indian Oil Corporation. There is no question of saying that the said facts brought to the notice of department is an after thought, and no reason has been assigned in the impugned order in this regard. There is no finding recorded for arriving to the aforesaid conclusion. There is not even the finding recorded, as to how and in what manner, the crack of totaliser seal may be said to attract the penal action, when no complaint of irregularity is made by department against the petitioner till date.
68.  That there was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007)  to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) that there may not be even the apprehension upon the inspection in the mind of inspection team that totalize could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspension. It is submitted that suspicion, whatsoever, it may be strong, but the same could not become the basis of punishment. The sole  charge is based on no evidence and perverse finding.
69.  That the allegation in respect of having no retention samples of MS and HSD, the same were found at the retail out let of the petitioner no. 1, but since the seal of the department were not affixed upon them, due to non availability of such seals, in spite the demand of the same by the petitioner from the dept. of the respondent’s company on 13.5.2007, for which there is no denial in impugned order, the charge no. 4 is also based upon no evidence and perverse finding.
70.  That it appears that since an order was issued on 6.12.2007 in  Writ Petition No. 42692 of 2007, filed by petitioner No. 2 against Suspension of the dealership of petitioner directing the department to pass the final order within 2 weeks, and as such the respondent no. 1 passed the impugned order without looking into reply of the petitioner on 21.6.2007 (Already  filed as Annexure  5 to Writ Petition No. 42692 of 2007, filed by petitioner No. 2 against Suspension of the dealership of petitioner). Thus the impugned order of terminating the dealership of petitioner is passed without any opportunity of hearing or being heard to the petitioner no. 2, nor has the copy of the Impugned order been supplied to the petitioner till date.
71.  That the respondent  has not  permitted to sale 11000 liter of the high speed diesel  amounting  to Rs. 3.5 Lacks and the Petrol  in the quantity of 3,500 liter amounting  to Rs. 1,4 4,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the  depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 6. 10. 2008. The threatening is given for dismantle of the retail out let by the respondents.
72.  That in the writ petition No. 5878/2009,  the petitioners were challenging the order given to the contractor for dismantle of retail out let has already being deployed on 6.10.2008 and order dated 10.1.2009 passed during pendency of departmental appeal against the order dated 20.12.2007(Annexure No. )as per order in  Writ petition No. 47182 of 2008   . It is submitted that  the departmental appeal preferred to the Executive Director Of Indian Oil Corporation was not been decided by that time, even after completion of maximum time limit of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines. No counter affidavit was filed in the writ petition No. 5878/2009 by any respondents.
73.  That the following order was passed on the present writ petition No. 5878/2009 which is being reproduced as under-
Hon. V. M. Sahai, J.
                         Hon. Ran Vijai Singh, J.
            Heard learned counsel for the petitioners learned standing counsel appearing for respondents no. 3 and 4, and Shri P. Paida, learned counsel appearing for respondents no. 1,2,5,6,7,8,9 and 10.
            Three weeks’ time is allowed to file counter affidavit. Rejoinder affidavit, if any, may filed one week thereafter.
            Until further orders of this Court, the respondents are restrained from demolishing or dismantling the petrol/diesel pump of the petitioner. Meanwhile, it shall be open to the respondent no. 7 (represented by Additional Solicitor General of India) to take decision in the matter of the petitioner.
3.2.2009                                              Sd/-   Sri  V. M. Sahai, J.                                                                                                                   Sri       Ran Vijai Singh, J.
74.                   That since as per the directions given in the earlier writ petition no. 47182 of 2008, the appeal file by the petitioner on 1.10.2008 in furtherance of  the judgement dated 10.09.2008 passed in the said writ petition, the same has not been decided even after the maximum period of 90 days. However, an order for dismantling the retail outlet ordered on 06.10.2008 and as such the writ petition No. 5878/2009 was filed for seeking the protection against the arbitrary action of the respondents. No counter affidavit was filed in the writ petition No. 5878/2009 by any respondents. That an order was issued on 21.7.2009 by the executive director, the respondent no.3, dismissing the appeal during the pendency of the present writ Petition and as such an application seeking  proposed amendment in the writ petition No. 5878/2009 was prepared having the amendment/ incorporation of paragraphs no. 79 to 98 , grounds x to Aj and prayer No. V was prepared on 24 .8.2009 for filing the same before this Hon’ble Court. The same has not been filed in view of the order passed in the writ petition No. 5878/2009 on 3.8.2009.
75.                   That in order to prove the bonafide mistake of the counsel for not attending the case of Writ Petition No. 5878/2009 on 3.8.2009, in which no counter affidavit was filed. The copy of the Amendment application was served to the Counsel Sri Prakash Padia, then it was informed that the list of the court No. 2 was transferred on 3. 8. 2009 to the Hon’ble Court No. 32 on the said date and the present writ petition has been dismissed in default on the said date. It is Submitted that on enquiry, it has been revealed that Hon’ble Justice Krishna Murari has been shown in court No. 32 as the Hon’ble Single Judge, but by the order of the Hon’ble The Chief Justice, the Division Bench Presided over by Hon’ble Mr. Justice Syed Rafat Alam and Hon’ble Justice Krishna Murari was assigned with the Jurisdiction and on 3. 8. 2009 listed matter of Court No. 2 from Serial No. 30 onwards have been conferred with the jurisdiction of the Division Bench, in absence of the information regarding the transfer of the listed matter of court no. 2 to court no. 32 through his clerk, the writ petition No. 5878/2009 was dismissed.
76.           That the harassment was done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009. That when the petitioner along with his counsel appeared before the World Trade Centre, Baber Road, New Delhi, they were intimated by the General Manager of the Indian Oil Corporation (Marketing Division, New Delhi) that the date was already changed from 20.02.2009 to 19.02.2009 and the order/intimation of the aforesaid change was given to the Sales Manager of the Indian Oil Corporation at Agra but he did not intimated the correct date to the petitioner.  The true copy of the order/intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009  of the is filed herewith and marked as Annexure No.17.
77.   That subsequently on 21.02.2009, the intimation of the change date has been communicated to the petitioner at the address of the retail outlet but by that time the petitioner along with his counsel had already left for appearing at World Trade Centre, Baber Road, New Delhi along with the member of the parliament Sri Chandra Bhushan Singh (M.P.) from District Farrukhabad for demonstrating the malafide intention of the respondent no. 1 in passing the order of  termination of the dealership. The true copy of the intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra received on  21.02.2009 is filed herewith and marked as Annexure No.18.
78.      That it has already been submitted that there has been the stock of the huge quantity of the petroleum products about 11000 liter of the high speed diesel amounting to Rs. 3.5 Lacks and the Petrol in the quantity of 3,500 liter amounting to Rs. 1,44,000/- and mobile oil amounting to Rs. 2 Lacks has been sealed apart from depositing of Rs. 2,30,000/- with the depot, but still the order for disposal of the aforesaid commodities is not given prior to dismantle of the retail out let has not been given by the respondent no. 1 in the impugned order passed on 06.10.2008.
79.    That the petitioner received another letter having the date for his presence before the appellate authority dated 22.5.2009 fixing 3.6.2009 as the date fixed much after the expiry of time period of 90 days, as prescribed as outer limit for deciding the appeal preferred by the petitioner on 1.10.2008, as per the request made by the counsel for the respondent No. 1,2, 9 and 10 to this writ petition. The true copy of the order/intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 22.5,2009  is filed herewith and marked as Annexure No.19.
80.    That since the Union Of India was assigned with the direction to look into the matter of the power exercisable by higher appellate authority over and above to the authority of respondent no. 10, the respondent no. 10 was having no jurisdiction to decide the appeal in defiance of the direction issued by this Hon’ble Court on 3.2.2009 as the interim measurement to protect the interest of the petitioner. Thus the respondent No. 10 became Ex officio to decide the Appeal and the order passed on 21.7.2009 is an order without Jurisdiction.
81.    That at the very out set, it is submitted that the petitioner is an old man and he travel up to Mumbai without having the reservation in Railway and as such the authority letter was given to his counsel to appear and to demonstrate the order passed on 3. 2. 2009 in the present appeal. It is submitted that the counsel of the appellant was not allowed to make his respectful submissions by the respondent no. 2 and there after at the late hours was allowed to address the submission before the respondent No.3.
82.   That it is falsely alleged that any Show Cause Notice was ever issued by GM, UPSOIL dated 09.10. 2007, nor there is any mention regarding the service of the said notice in the termination order at any point of time, nor in the short counter affidavit in compliance of the order dated 06.12.2007 passed in writ petition no. 42692 of 2007. The termination order was received along with the said short Counter affidavit, but still has not been served to the petitioners till date. Thus the order of appellate authority is perverse, obsolete and malafide, which has been passed contrary to the evidences on record and in excess of the power vested with appellate authority. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was  any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time. Thus the termination of the dealership of the petitioner is without any opportunity and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank)
83.     That the petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. There is neither the signature of any person having his associations with the retail outlet, nor there is the affixation of the genuine seal of the firm on the alleged (fabricated) inspection report.
84.    That the report dated 19.06. 2007 has been relied upon where in neither the DUs-HSD ( OF AVERY  MAKE ) was neither found broken , nor it could have been tempered as disclosed in future inspection report , relied upon by the petitioners. There is no denial of any such report in the Impugned order dated 21.7.2009 passed by the respondent no. 10. Thus the inspection report dated 24. 5. 2007 is the false report, which can neither become the piece of evidence, nor can be relied upon in presence of the report dated 19.6.2007.
85.    That the petitioner was making the demand from the respondent no. 1 and 2 and their officials to replace the cracked seal vide letter dated 13. 05. 2007, for which there is no denial in the impugned orders passed on 21. 12. 2007 and 21.7.2009 and as such there was no irregularity ever found in the retail out let since its inception vide LO/R/PNS/1621 Dated 16.5.1976, for which false reply was given to parliament regarding its commissioned in 1998. Thus the allegation of tempering are totally absurd, false, fabricated and redundant concoction leveled against the petitioner, for which there is no evidence at any point of Time.
86.     That neither Rajesh Sharma AMRS, Rahul Jaidarath, nor Pankaj Kumar comprises to be the member of Joint Inspection team ( INDUSTRY) along with the officers of weight and measurement department, nor these officers are the officers in grade “c” in the DIVISIONAL /TERRITORY/ REGIONAL OFFICES, nor they were authorized to fill up the inspection forms in absence of the petitioners or their representatives. The order dated 21. 7 2009 relying upon such ex parte report manufactured and fabricated is arbitrary and concocted order passed by the appellate authority namely Sri H.S. Bedi Executive Director on the dictation of Divisional manager Mr.  Kukreja without looking into the fact that termination of the dealership of the petitioner can not be taken place in absence of the clear cut evidences of tempering done by the petitioners by adulteration in the H.S.D. or in Motor Spirit from his retail outlet. The termination order is  passed in violation  of natural justice without issuance of any show cause notice is a bizarre exercise of acquiring the power to dispense with supply of the H.S.D. or in Motor Spirit from his retail outlet, as it may be allotted to other party after realizing the exorbitant amount from new dealer.
87.     That during the course of arguments in furtherance of the grounds taken in appeal, Sri H.S. Bedi, Executive director has reprimanded the conduct of then General Manager of the I.O.C.  of realization of excess charges of 1,98,433/- in Round Trip distance and also condemned the false reply given by him to the government of india regarding commission of the retail out let in 1998, while it was sanction in 1976. He also asked from Mr. Kukreja , as to why not the supply be maintained from Kanpur depot to Mohamadabad instead of Mathura and Agra Depot and enquired about the distance from the counsel of the petitioners. He condemn the action of Mr. Kukreja in issuance of the order of dismantled of retail out let during the pendency of Appeal. Shri H.S. Bedi also said that why not the alledged issuance of the show cause notice does not find description there  of in the termination order and sought for the receipt of dispatch of said Show Cause Notice to the petitioner. He said the guidelines of 2005 have not been followed in conducting the inspection and why not the report dated 19.6.2007 of weight and measurement department may not be treated as correct. He asserted that why the termination order was not communicated by registered post. Where is the receipt of the certificate of posting as mentioned in termination order along with the short counter affidavit. The appellate authority assured for resuming the supply and to sell the petroleum product stored at retail out let by giving authority to the petitioner. However the order was not passed on 3.6.2009, despite the request made by the counsel in this regard.
88.     That the grounds taken in appeal, Sri H.S. Bedi, Executive director, the respondent no. 10 that there is no evidence to suggest the tempering done in supply of H.S.D. and Motor Spirit, nor evidence collected in this regard. Thus the termination order is void ab initio and passed without jurisdiction.
89.    That reiterated earlier that the appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank). It is submitted that there is no averment made in the termination order that the dip of 15 KL HSD ( connected to a DU), which was 32.0 cm as on 1.1.2007 had changed to 19.0 cm during inspection on 24.5.2007 and therefore established that interconnection of tank was existing, is a baseless, false and manufactured allegation leveled by the appellate authority without application of mind that interconnectivity was not inoperative since more than 2 years, but on the other hand it was maintained by the department up to the previous year of inspection. It is submitted that this was not the ground in termination order , while the appellate authority has exceeded its jurisdiction in imposing such false accusation as no appeal against the termination order passé on 20. 12. 2007 was filed by the department.
90.   That the petitioners were informed that there will be further inspection on 27.6.2009 and the intimation to this effect was given by Mr. Kukreja on the mobile of the dealer on 24.6.2009. There after the photocopies of the register maintain at the retail out let were taken by Rahul Jaidrath posted as   ARMS Agra along with two other officers, as nothing was found to established the tempering of the W.M. SEAL of  DUs –HSD (of AVERY MAKE) or in the sealing wire passed through holes even on 27.6.2009.These officers after the aforesaid inspection have assured the petitioner No. 2, but directed to meet Mr. Kukreja and Shri H.S. Bedi . It is submitted that there after the demand of an exorbitant money was made to resume the supply, when ever the petitioners approached to the regional office at Agra. The petitioners could not offer any bribe and lastly as a repercussion of it, their appeal has been dismissed. The true copy of the impugned order passed by Sri H.S. Bedi , Executive Director/ appellate authority, the respondent no. 3 on 21.7.2009 is filed herewith as Annexure No. 20 to this writ petition. 
91.    That in this manner, the order passed by the respondent no. 3 is perverse, arbitrary, redundant and obsolete and based on no evidence. The same has been passed in excess of the jurisdiction and without application of mind simply on the dictation of the respondent no. 1 and 2 through one Mr. Kukreja with malafide intension and just to wreck the vengeance of daring of the petitioner to raise the question regarding RTD in parliament for realization of excess charges of Rs. 1, 98, 433/- from the corporation. Such an order is contrary to the object and passed in ulterior consideration of non fulfillment of the demand of illegal gratification, can not be sustained as this exercises the pernicious influence through reprehensible conduct and has been passed against the spirit of the order dated 3.2.2009, wherein directions were given to respondent no. 7, not to respondent no. 10 for deciding the appeal after the expiry the of 90 days, which is not permissible under law. Thus the order dated 21. 7. 2009 is liable to be quashed.
92.   That on account of this inadvertent mistake and ignorance, the counsel for the petitioner could not remain present at the time of taken up the matter and as such the writ petition No. 5878/2009 has been dismissed due to the inadvertent mistake of counsel for not being informed regarding the transfer of listed matter of court no. 2 to court no. 32 on 3. 8. 2009. The proposed amendment and the application for recall of the said order passed on 3.8. 2009 was prepared on 24.8.2009 and 27.8.2009 respectively  duly supported with the affidavit, but the same were not filed on account of the fact that certain observation in the  writ petition No. 5878/2009  has been made on account of the fact of deciding the appeal by appellate authority. The true copy of the order passed on 3. 8. 2009 (published and received on 8.9.2009) is filed herewith and marked as Annexure No. 21
93.     That the petitioner has no other efficacious remedy, except to file the present writ petition on the following amongst other grounds.
                          GROUNDS
a.    Because Fraud and justice never dwell together, as is being done by the respondent no. 1 in the present case, while passing the impugned order in pre-medicated manner on account of legal malice and legal malafide, which smacks the capriciousness of power as the penal action may only be taken, when the totaliser seals found tempered with as per MDG 2005 and not broken/ cracked..
b.     Because this may be demonstrated in the reply submitted by Dy. General Manager on 5.3.2007 to the under secretary to the Govt. of India in furtherance of realization of excess amount of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD).
c.     Because just to avoid the liability of repayment of these extra charges from petitioner out let from a duration of 1976 onwards, a false reply was submitted by then Dy. General Manager in his reply/correspondence with Govt. of India saying that the Retail out let of petitioner was commission in 1998, while in impugned order,  General Manager himself admitted that dealership of petitioner was Commissioned in the year of 1976 (Vide LOI R/PNS/1621 dated 16/5/1976).
d.    Because false reply was submitted to the Union of India, the matter pertaining to their functioning conducted in realization of the excess money of Rs. 1,98,433.00/- from petitioner as the price of round trip distance(RTD) was enquired by the member of parliament from govt. of India and thus passing of impugned order is contrary to its objectives and passed with oblique motive Indian Oil corporation.
e.     Because, as per the guidelines the penal action of non supply of the commodity after the inspection made on 24.7.2007 can not be done without taking prior explanation from the dealer as per their own guide lines 6.3(notes iii) and as the notice was issued subsequently on 12.6.2007 the order dated 24.5.2007 was illegal and void in itself.
f.      Because, guide line prescribed the maximum limit of 90 days in deciding the appeal as per guidelines 6.3 (notes  iv ), but despite the appeal filed on 1.10.2008 and the date was fixed on 9.2.2009 fixing 20.2.2009 and there after 19.2.2009 and on 22.5.2009 fixing 3.6.2009, but the departmental appeal is decided on 21.7.2009 i.e after more than9  months, instead of mandatory maximum period of 3 months.
g.     Because, there is no irregularity ever recorded in maintenance of the retail out let by any authority and there was no complained ever made since 1976 from the date of commission of retail out let and guidelines 6.3 ( notes V ) prescribed that this fact shall be mention in the order of punishment , but neither the punishing authority , nor appellate authority have taken the note to this provision , while passing the order of termination of dealership.
h.    Because Fraud is committed by the respondents, in passing the impugned orders, as the responsibility was lying upon his officials of the respondent no. 1, to replace the crack seal of one of the DUs –HSD (Of Avery make), (as per the Inspection Report by the weight and measurement officer made on 19.6.2007), as the said charge is based on no evidence and perverse finding.
i.      Because there was persistent demand to replace the crack seal, (as per the Inspection Report by the weight and measurement officer made on 19.6.2007)  to have the other repairs by tightening the sealing wire through holes of seals of DU-MS (of MIDCO make) and HSD (of Avery Make) and there may not be even the apprehension upon the mind of inspection team that totalize could be manipulated without breaking the seals, which is self contrary charge with earlier charge and suspicion, whatsoever, it may be strong , but the same could not become the basis of punishment. The said charge leveled is based on no evidence and perverse finding.
j.      Because the order dated 20.12.2007, based upon ex-parte averments and allegation leveled in suspension order,  has been issued  without  giving  any show cause notice  by the  competent authority and the impugned order are  having  the civil  consequences,  the same could not be passed without  affording any opportunity of being heard to the petitioner.
k.    Because the other  ground which are enumerated  in the aforesaid guidelines are in respect of the short  delivery of the  product with  regard  to the weight  and measures  seal  intact and in case the Weights and Measures  seal  is tampered then only any penal action would have taken by the competent authority. Thus the issuance of the order on 20-12-2007 has been also beyond the jurisdiction of the respondent no. 1.
l.      Because the order of the termination is challenged on the ground that it could not be passed on the false and baseless allegation merely on the ground of suspicion in conducting the irregularity, which was not based upon any complaint of the customer by the inspecting team, and was inspected  without taking  the approval of the  same from the  competent authority.
m.           Because the  Weight and Measurement Officer, who is required to verify  the processing of the  seal of  high speed diesel  and Weight and Measure seal  as reported  on 19-6-2007 itself that the  High Speed Diesel DUs seal  on its meter  was not tampered  and in the said inspection there was no tampering   on  with the read wire. It was also directed to put a set on the machine and nothing was found adverse which could have been resultant in non-supply of the High Speed Diesel and Motor  Spirit to the  retail  outlet by suspending the license. 
n.              Because It is submitted that if W& M seal of HSD-DU every make on meter assembly was found broken how does in the inspection made on 19-6-2007 only crack could have been found by the officials of the Weight and Measurement Department. Thus the allegation leveled in furtherance of the charge no. II recorded in the suspension order dated 24-5-2007 and in the show cause notice dated 12-6-2007 was based on the false allegation, which is in itself contradictory as per the report submitted by the inspection team of the Weight and Measurement Department on 19-6-2007.
o.             Because the  order 20.12.2007 was not passed after giving any opportunity of being heard, nor the reply submitted in respect of query made has been taken into consideration. Thus passing of order is in violation of Principle of natural justice. The same are  liable to set aside.
p.         Because, the harassment is being done subsequent to the aforesaid action by making and intimation from the office of the Marketing Division of the Indian Oil Corporation from its Mumbai Office situated at G-9, Ali Yavar Jung Marg, Bandra on 09.02.2009 directing the petitioner to appear at 2nd Floor of World Trade Centre, Baber Road, New Delhi on 20.02.2009. when the petitioner alongwith his counsel appeared before the World Trade Centre, Baber Road, New Delhi, they were intimated by the General Manager of the Indian Oil Corporation (Marketing Division, New Delhi) that the date was already changed from 20.02.2009 to 19.02.2009 and the order/intimation of the aforesaid change was given to the Sales Manager of the Indian Oil Corporation at Agra but he did not intimated the correct date to the petitioner.
q.       Because, it is falsely alleged that any Show Cause Notice was ever issued by GM, UPSOIL dated 09.10. 2007, nor there is any mention regarding the service of the said notice in the termination order at any point of time, nor in the short counter affidavit in compliance of the order dated 06.12.2007 passed in writ petition no. 42692 of 2007. Admittedly the termination order was passed without issuance of any Show Cause Notice and there was  any Show Cause Notice ever issued by GM, UPSOIL dated 09.10. 2007, as there is even the mention regarding the service of the said notice in the termination order at any point of time. Thus the termination of the dealership of the petitioner is without any opportunity and the same is in violation of the principles of Natural Justice. The appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank)
r.         Because, the petitioner has stated that the inspection of the retail outlet was not done in presence of dealer, nor in presence of his representative, but the inspection, which was not done by any Grade C Divisional level officers and the members of Weight and Measurement Department by the Joint Inspection Team as per the requirement of 4.3 MDG 2005 and there has been the false accusation of regarding tempering of meter assembly seal , nor its wire was manipulated. There is neither the signature of any person having his associations with the retail outlet, nor there is the affixation of the genuine seal of the firm on the alleged (fabricated) inspection report.
s.        Because, the report dated 19.06.2007 has been relied upon where in neither the DUs-HSD ( OF AVERY  MAKE ) was neither found broken , nor it could have been tempered as disclosed in future inspection report , relied upon by the petitioners. There is no denial of any such report in the Impugned order dated 21.7.2009 passed by the respondent no. 10. Thus the inspection report dated 24. 5. 2007 is the false report, which can neither become the piece of evidence, nor can be relied upon in presence of the report dated 19.6.2007.
t.         Because, the petitioner was making the demand from the respondent no. 1 and 2 and their officials to replace the cracked seal vide letter dated 13.05. 2007, for which there is no denial in the impugned orders passed on 21. 12. 2007 and 21.7.2009 and as such there was no irregularity ever found in the retail out let since its inception vide LO/R/PNS/1621 Dated 16.5.1976, for which false reply was given to parliament regarding its commissioned in 1998. Thus the allegation of tempering are totally absurd, false, fabricated and redundant concoction leveled against the petitioner, for which there is no evidence at any point of Time.
u.       Because, Sri H.S. Bedi, Executive director has reprimanded the conduct of then General Manager of the I.O.C. of realization of excess charges of 1,98,433/- in Round Trip distance and also condemned the false reply given by him to the government of India regarding commission of the retail out let in 1998, while it was sanction in 1976. He also asked from Mr. Kukreja , as to why not the supply be maintained from Kanpur depot to Mohamadabad instead of Mathura and Agra Depot and enquired about the distance from the counsel of the petitioners.
v.     Because the action of Mr. Kukreja in issuance of the order of dismantled of retail out let during the pendency of Appeal. Shri H.S. Bedi also said that why not the allege issuance of the show cause notice does not find description there  of in the termination order and sought for the receipt of dispatch of said Show Cause Notice to the petitioner. He said the guidelines of 2005 have not been followed in conducting the inspection and why not the report dated 19.6.2007 of weight and measurement department may not be treated as correct. He asserted that why the termination order was not communicated by registered post. Where is the receipt of the certificate of posting as mentioned in termination order along with the short counter affidavit. The appellate authority assured for resuming the supply and to sell the petroleum product stored at retail out let by giving authority to the petitioner.
w.      Because. the grounds taken in appeal, Sri H.S. Bedi, Executive director, the respondent no. 10 that there is no evidence to suggest the tempering done in supply of H.S.D. and Motor Spirit, nor evidence collected in this regard. Thus the termination order is void ab initio and passed without jurisdiction.
x.        Because, as reiterated earlier that the appellate authority can not step in side the jurisdiction of the punishment authority. (AIR 1995 SC 1053 Surjit Ghosh Versus Chairman & managing Director United Commercial Bank). It is submitted that there is no averment made in the termination order that the dip of 15 KL HSD ( connected to a DU), which was 32.0 cm as on 1.1.2007 had changed to 19.0 cm during inspection on 24.5.2007 and therefore established that interconnection of tank was existing, is a baseless, false and manufactured allegation leveled by the appellate authority without application of mind that interconnectivity was not inoperative since more than 2 years, but on the other hand it was maintained by the department up to the previous year of inspection. It is submitted that this was not the ground in termination order, while the appellate authority has exceeded its jurisdiction in imposing such false accusation as no appeal against the termination order passé on 20. 12. 2007 was filed by the department.
y.        Because, the order passed by the respondent no. 3 is perverse, arbitrary, redundant and obsolete and based on no evidence. The same has been passed in excess of the jurisdiction and without application of mind simply on the dictation of the respondent no. 1 and 2 through one Mr. Kukreja with malafide intension and just to wreck the vengeance of daring of the petitioner to raise the question regarding RTD in parliament for realization of excess charges of Rs. 1, 98, 433/- from the corporation. Such an order is contrary to the object and passed in ulterior consideration of non fulfillment of the demand of illegal gratification, can not be sustained as this exercises the pernicious influence through reprehensible conduct and has been passed against the spirit of the order dated 3.2.2009, wherein directions were given to respondent no. 7, not to respondent no. 3 for deciding the appeal after the expiry the of 90 days, which is not permissible under law. Thus the order dated 21. 7. 2009 is liable to be quashed.
z.      Because the order passed by the appellate authority after expiry of 90 days maximum period prescribed for deciding the appeal is an order by making an abuse of power in excess to the jurisdiction conferred with the appellate authority tantamount contempt of the order dated 3.2.2009 passed by this Hon’ble court, wherein the union of India was directed to decide the appeal, but not by the respondent No. 3 by passing the illegal order in excess of jurisdiction without application of Mind.
                                                                    PRAYER
 It is, therefore, Most respect fully prayed that this Hon’ble court may graciously be pleased to:-
I)             Issue a writ , order or direction in the  nature of Certiorari  Quashing the Impugned order passed on 21. 7. 2009 (Annexure No. 20)   by the respondent No. 3 rejecting the departmental Appeal filed on 1. 10 2008 beyond the prescribed period of limitation of 90 days prescribed under Clause 6.3.5 of the Marketing Discipline Guidelines of 2005, affirming the impugned order having affirmation of order of termination of dealership of the petitioner’s retail outlet and order  passed on 20.12.2007 (Annexure No. 10)  in excess of jurisdiction and also in flagrant violation of their  own Marketing Discipline Guidelines of 2005.
II)             Issue a writ, order or direction in the nature of Mandamus Commanding and directing the respondent to maintain the regular supply of HSD and   MS and other lubricants to the petitioners as justice may be one with the right of petitioner.
III)              Issue any other writ, order or direction as this Hon’ble Court may deem fit and proper under the circumstances of the case.

Dated- 10.9.2009                                               (YOGESH KUMAR SAXENA)                                                          
                                                                                          ADVOCATE HIGH COURT
                                                                                                              (Counsel for the Petitioner)
                                                                         Chamber No. 139, High Court, Allahabad
                                               




               IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
 Annexure – 3
CIVIL MISC. WRIT PETITION NO.                                          OF 2009
(Under Article 226 of the Constitution of India)       (District –Farrukhabad)
M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad and another .          -------------------------Petitioners                                         Versus
            Indian Oil Corporation Ltd  through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II,  Noida. And others …………………………………..    Respondents
A Patel                        Government Seal                                      
Minister of State for Petroleum & Natural Gas, Government of India, New Delhi – 110 001
April 26, 2007
Shri Singh ji,
Please refer to your D.O. letter No. MP/CBS/MOP&NG/2006 dated 30.11.2006 regarding release of payment to M/s. Dheerpur Multi        was commissioned in 1998. Retail Selling Price (RSP) of this RO was fixed considering 480 RTKM, the certified Round Trip Kilo Meter (RTKM) at that time. RTKM any location from any supply point is not permanent. It varies with time as it gets …   arranged due to development of new road, construction of bridges, culverts and bye pass road of town, cities etc.
In 2003 one more RO, belonging to BPC, was commissioned at Mohamadabad ….. to change of  RTKM, the new RSP of the location was revised downward taking round Trip Destination as 397 KM.
IOC has further reported that the dealer’s commission does no depend on the SP of the product as the element of dealer’s commission per liter is constant factor respective of the final RSP.  Secondly, the effect of higher  RTKM in the price is taken are by the higher RSP fixed for the location and it does not have any effect in the dealer’s commission received by the dealer. The effect of higher billing price has direct bearing in the RSP of the location. In view of the above, IOC is unable to consider the request for refund.
A copy of the report dated 05.03.2007 received from IOC is enclosed for your kind appreciation.
With regards,
Encl ; As above.                                                              Yours sincerely

                                                                                             (Dinesh Patel)
Shri Chandra Bhushan Sinigh,  M. P. (Lok Sabha), B-1, ‘A’ Block, M.S. Flats, Baba Kharak Singh Marg, New Delhi – 100 001  

                      










               IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
                                                            Annexure – 4
CIVIL MISC. WRIT PETITION NO.                                          OF 2009
(Under Article 226 of the Constitution of India)       (District –Farrukhabad)
M/S Dhirpur Multi Center, Mohammadabad, District Farrukhabad, through its proprietor , Shri Bhagwan Baksh Singh son of Shri Abiran Singh, r/o  Village and Post Dheerpur, Tehsil Sadar, District Farrukhabad and another .          -------------------------Petitioners                                         Versus
            Indian Oil Corporation Ltd  through its General Manager, Indian Oil Corporation Ltd. State Office, U.P-II,  Noida. And others …………………………………..    Respondents
Indian Oil Corporation Limited, Regd. Office : Indian Oil Bhawan, G-9, Ali Yavar Jang Marg, Bandra (East), Mumbai – 400 051 (India)
Marketing Division…………………………………………………………………………………………………
Ref.No.4031/AM                                                        By Speed Post
           Dated : 05.03.2007     
To,
Under Secretary to the Govt. of India
Ministry of Petroleum & Natural Gas,
Government of India
Shashtri Bhawan,
NEW DELHI – 110 0010
                                         Kind Attn. : Shri Tajbir Singh
     Ref : Auto Generated Reference No. 200605671 dt. 18.01.2007
Sub : REG. REP of M/s. Dhirpur Multi Centre, IOC dealership at Mohmdabad, District – Farrukhabad regarding excess price charged from 1998 to 2004.
Dear Sir,
This has reference to DO letter dated 30.11.06 Shri Chandra Bhushan Singh, Hon’ble MP(LS) which has been acknowledged by Hon’ble Minister of P & NG  vide his DO letter no. 2842/M (P&NG)/VIP/06 dated 06.12.2006.
Hon’ble MP has forwarded a representation of Shri Bhagwan Baksha Singh                                                                                                       


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