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Judgment
Virender Singh, C.J.—The instant appeal is at admission stage and taken up on an urgency memo filed by learned counsel for the appellant. Since learned counsel for both the sides have agreed to the final disposal of the instant appeal, at admission stage itself, hence admitted to hearing and taken on board for its final consideration.
Bharat Petroleum Corporation Limited (hereinafter referred to as BPCL) being aggrieved of the judgment dated 30th January, 2015 rendered by learned Single Judge in W.P.(C) No. 5788/2014 filed by respondent No. 1, M/s. Suresh Kumar Patwaria, Retail Outlet Dealer of BPCL (hereinafter to be referred to as petitioner only), whereby direction has been given to BPCL to pass a final order within a stipulated period failing which the order of suspension of supply to the retail outlet by BPCL shall stand revoked, is before us through the medium of instant Letters Patent Appeal.
Admittedly, when the petitioner knocked at the door of the learned Writ Court, the final order was not passed by the competent authority (Respondent No. 4 herein) and he sought quashment of the order dated 2nd of August, 2014 issued to him by Territory Manager (Retail), Ranchi (Appellant No. 2 herein), whereby the suspension of sales and supplies of petroleum products by an oral order dated 09.07.2014 was affirmed and the entire matter was before respondent No. 4 for his consideration with regard to certain irregularities found at the retail outlet of the petitioner during an inspection conducted by the QCC team of BPCL on 09.07.2014. The petitioner had also responded to the show cause notice issued to him. As there was delay at the end of the respondent No. 4 in passing the final order in terms of Clause 8.5.1 of Marketing Discipline Guidelines, 2013 (for short MDG 2013), this constrained the petitioner to approach the Writ Court for the aforesaid relief.
Certain facts are required to be noticed for the purpose of proper appreciation of the case on hand.
While inspecting the retail outlet of the petitioner on 9th July, 2014, QCC team of BPCL lifted the sample of Motor Spirit (MS) and HSD for its clinical testing. Some deficiencies were noticed in the sample of MS vis-�-vis the density etc. in the test report. However, sample of HSD was found to be as per the norms. According to BPCL, it was a case of adulteration in MS. This is considered to be a critical irregularity in terms of MDG 2013, for which even dealership can be terminated. Besides this, many other abnormalities were also noticed at the spot by the inspecting team. Even the representative present at the retail outlet, misbehaved with the team, cut-off of the power supply to prevent the team from drawing sample and completing their inspection. But for the critical irregularity vis-�-vis MS sample which is found to be not according to the prescribed norms, all other irregularities are not of that serious nature and in this regard, sale and supply to the retail outlet can be suspended only upto 15 days and not beyond that, if it is for the First time. Admittedly, all these irregularities are noticed for the first time.
Learned Writ Court entered into a detailed discussion and has returned a categoric finding that the motor spirit (MS) lifted from the retail outlet of the petitioner on 9th July, 2014 by the officials of BPCL for its inspection was not adulterated, therefore the case of the petitioner would not fall for termination of dealership as provided under clause 8.2 of MDG 2013, instead a case for consideration within Clause 8.3 of MDG 2013, therefore issued direction to BPCL to pass a final order within a specified period. BPCL is mainly aggrieved of the finding returned by the learned Writ Court to the extent of holding the MS sample as not adulterated.
Mr. Roy appearing for BPCL fairly stated that the supply to the retail outlet of the petitioner has not been restored till date because of pendency of the instant appeal.
Mr. Roy submitted that the petition filed by the petitioner, in fact, was premature and should not have been entertained by learned Writ Court as petitioner sought quashing of the show cause notice only and no final order came to be passed by the respondent No. 4 till then. Learned counsel contended that it was not the stage to delve deep into the merits of the case and return a categoric finding against BPCL.
Mr. Roy submitted that there were certain other aspects as well, which were yet to be considered by respondent No. 4, after taking into account the reply filed by the petitioner to the show cause notice. Learned counsel submitted that no doubt, delay has occurred in not taking up the case of the petitioner at the end of respondent No. 4, whereas in terms of clause 8.5.8 of MDG 2013, speaking order should have been passed within 45 days from the receipt of reply from the petitioner, still the entire matter was premature, therefore, the learned Writ Court at the most could give direction to the respondent No. 4 to decide the case of the petitioner by passing a speaking order within some stipulated period, instead of recording a categorical finding that sample of MS drawn from the retail outlet of the petitioner was not adulterated. Learned counsel submitted that the concerned authority had yet to record a finding as to whether it was a case of critical irregularity falling within clause 8.2 of MDG 2013 or a case to be dealt with under clause 8.3 of MDG 2013 so as to pass an order for termination of the dealership or for any other action depending upon the facts of the case. Mr. Roy, thus, submitted that the finding returned by the learned Writ Court on the merits of the case vis-�-vis adulteration part of the sample of MS deserves to be disturbed so that the entire matter is taken up by the respondent No. 4 in accordance with MDG 2013 and all this exercise can be directed to be carried out within the shortest possible period as fixed by the Court. Supply of petroleum products to the retail outlet of the petitioner can also be considered at the same time.
Per contra Mr. Ajit Kumar appearing for the petitioner submitted that the learned Writ Court has seen each individual aspect from the clinical report produced by BPCL and on the basis of the said report only, a conclusion is drawn that the sample of MS was not adulterated as it conforms the requirement of IS 2797-2008 (latest version), according to which permissible variation limit with regard to density can vary between 720 and 775. According to Mr. Kumar, the other parameters as reflected in the clinical test report also conforms the minimum standard especially in reference to the Research Octane Number (RON). Learned counsel submitted that may be in the clinical test report, it is indicated that there is introduction of some hydrocarbon into RO tank, it will pale into insignificance if the entire clinical report is seen on all major characteristics. Learned counsel submitted that BPCL cannot go beyond its own report, therefore it is not a case for reconsideration on that aspect atleast by respondent No. 4.
Mr. Kumar submitted that in reply to the show cause notice tendered by the petitioner, he has categorically asserted in para 7 that the comparison has been made while conducting clinical test of sample MS to the last supply dated 28.06.2014, ignoring the earlier supplies of MS made to the retail outlet of the petitioner at three different occasions, that too, within one month only and in one of the supplies made on 30th May, 2014, the variation of density has gone so low, therefore on the basis of density only, the sample of MS drawn from the retail outlet of the petitioner, cannot be said to be adulterated, especially when it was conforming the requirement of IS 2797-2008 which aspect has also been taken into account by the learned Writ Court. He submitted that once it is found not to be a case of critical irregularity, the case of the petitioner can be considered only for other irregularities for which sale and supply can be suspended for 15 days only, therefore the learned Writ Court has given the direction to decide the issue within fixed time frame. He thus prays for dismissal of the instant appeal.
Show cause notice served upon the petitioner depicts as many as following eight irregularities:--
"Abnormally high stock variation in MS stock (7679 Liters)
Abnormally high stock variation in HSD stock (71575 Liters)
Difference of -5.9 in density of MS sample when compared to density mentioned on last invoice received.
Density Register not maintained for the past 14 days
Stock Register not maintained for the past 19 days
Tank Lorry retention samples not available at the retail outlet as per the guidelines
Your authorized representative initially refused to sign the instruction documents and refused to cooperate with the inspection team members, though finally signed roughly after 02 hours
Further, your representative deliberately cut off the power supply to the RO, by snapping the incoming wire to the main power panel to prevent the team to draw samples for testing and completing the inspection. However, the QCC team with the help of Company''s local officer summoned an electrician, thereby the power could be restored, samples drawn and inspection completed by 22.30 hrs."
Admittedly the main irregularity, which can be termed as critical irregularity is the adulteration in MS sample and the other irregularities are to be considered under Major Irregularities and Minor Irregularities in terms of MDG 2013. The action provided is altogether different from the one prescribed for critical irregularities. Preventing the team from drawing the sample from the retail outlet as done in the present case by the representative of the retail outlet is not to be considered under critical irregularity, as is the admitted position. Be that as it may, in our considered view, the learned Writ Court should have stayed its hand from entering into the merits of the case especially when the concerned authority of BPCL, i.e. respondent No. 4, who is the competent authority to deal with this issue under MDG 2013, had yet to take a final decision for passing a speaking order after taking into consideration the complete details of the irregularities noticed at the Retail Outlet, reply to the show cause notice, as to whether it was acceptable or not acceptable and other attending factors as well. In fact, the petitioner knocked the door of the Court at a premature stage, as by that time, he had only responded to the show cause notice issued to him by the Territory Manager (Retail), Ranchi. Undoubtedly, his case was delayed at the end of BPCL but that aspect could also be taken care of by issuing a direction to wrap up the entire proceeding within a stipulated period. In our considered view, looking at the aforesaid irregularities, all may not be critical irregularities but for one, the entire matter needs to be looked into by respondent No. 4 only, in detail. Any foreign material, if found, in the MS sample as reflected in the clinical test report would also be a factor to be taken into account and all this exercise should be left to the wisdom of the concerned official of BPCL in the first instance. It would be too early at this stage to record any categorical finding into any aspect especially with regard to critical irregularity.
Viewed thus, we hereby disturb the finding of the learned Writ Court vis-�-vis adulteration part of the sample of MS drawn from the retail outlet of the petitioner and leave this aspect open once again for the consideration of the respondent No. 4 who has to deal with other irregularities as well as pointed out in the show cause notice. However, keeping in view the fact that the matter has not been considered finally by respondent No. 4, may be on account of pendency of the main lis before the Writ Court and thereafter the instant Letters Patent Appeal, it shall now be brought to its logical end by passing a speaking order within three weeks only from the date, the copy of the order is conveyed to the concerned authority, which primarily be the responsibility of Mr. Roy appearing for BPCL.
We, however, make it clear that till the matter is finally decided by the respondent No. 4 by passing a speaking order as contained in clause 8.5.8 of MDG 2013, the sate and supply of petroleum products to the petitioner''s retail outlet shall remain suspended and in case, the entire issue is not decided within the aforesaid period, it would certainly give an impression that BPCL is deliberately delaying the entire exercise which ought to have been done within the stipulated period of 45 days as contained in clause 8.5.8 of MDG 2013 and in that event, order suspending sales and supply to the retail outlet of the petitioner shall stand revoked.
The net result is that the appeal stands allowed in the aforesaid terms.
I.A. No. 887 OF 2015 shall also stand disposed of.