Shailendra Kumar vs Indian Oil Corporation Ltd. and Others

Ramesh Kumar Datta, J.—Heard learned counsel for the petitioner and learned counsel for the respondent-Indian Oil Corporation. The petitioner seeks quashing of the letter dated 4.10.2013 issued by the Area Manager, Begusarai by which the candidature of the petitioner for award of RGGLV Distributorship has been cancelled and Letter of Intent dated 24.2.2012 has also been withdrawn.

The petitioner, pursuant to an advertisement dated 28.2.2011 for selection of Rajiv Gandhi Gramin LPG Vitrak (RGGLV), submitted his application along with others on 30.3.2011 and in the draw of lot the petitioner came out successful and by letter dated 24.2.2012 LOI was issued in his favour. On 13.2.2012 prior to the issuance of the LOI a complaint was received from one Pradeep Kumar Jha stating that the petitioner was involved in a very large number of criminal cases which fact he has suppressed before the respondent-authorities of the Indian Oil Corporation. A list of criminal cases was given in the letter upon which the respondents asked the said complainant to send copies of the FIRs which were duly sent. On the basis of the said complaint a legal opinion was obtained by the Sales Officer, LPG-S, Purnea by letter dated 25.6.2012 and by legal opinion dated 1.10.2012 it was opined that all the cases against the petitioner are by the complainant and his family members and it was stated that the petitioner was entitled for the LPG Distributorship.

In the advertisement dated 28.2.2011 it was provided in para-3(Jha) that the applicant should not be involved in any criminal case involving moral turpitude/economic offence nor any charge should have been framed for any penal offence by any Court of law against him. The corresponding affidavit annexed to the advertisement however, stated that the applicant had to state that no charge had been framed against him by any Court of law involving any offence of morai turpitude/economic offence (except freedom fighter) nor he has been convicted by any Court of law. Pursuant to the same the petitioner had filed his affidavit dated 28.3.2011 in which he had stated in para-6 "that I have never been convicted nor charge-sheet has ever been framed against me by any Court of law for any criminal offence involving moral turpitude and/or economic offence (other than freedom struggle)". The petitioner had further stated in para-8 of the said affidavit as follows:--

"That if any information/declaration given by me in my application or in any document submitted by me in support of application for the award of the RGGLV in this affidavit shall be found to be untrue or incorrect or false, the Indian Oil Corporation would be within its right to withdraw the Letter of Intent/terminate the distributorship (if already appointed) and that I would have no claim whatsoever, against the corporation for such withdrawal/termination."

Admittedly, the petitioner had not disclosed regarding the pendency of the criminal cases against him out of which at least in two of the cases charges had been framed and they were pending on the said date, namely, Bihra P.S. Case No. 2/2003 leading to Sessions Case No. 28/2006 under Sections 147, 323, 447, 436 and 379 IPC as also Bihra P.S. Case No. 17/2003 leading to Sessions Case No. 112/2005 in which charges had been framed under Sections 307/149 IPC.

On the basis of the aforesaid fact that the petitioner had suppressed the pendency of criminal cases against him, by the impugned letter dated 4.10.2013 the LOI issued in favour of the petitioner was withdrawn. Aggrieved by the same, the petitioner has filed the present writ application.

Learned counsel for the petitioner submits that since the complaint had been filed on 13.2.2012 eleven days prior to the issuance of the LOI on 24.2.2012, the respondents ought not to have issued the LOI in the first place without having concluded and giving the finding on the complaint but having done so and issued the LOI with the direction to the petitioner to complete the establishment of the RGGLV within four months, the petitioner had proceeded in the matter and invested about Rs. 31 lacs. It is, thus, submitted that at such belated stage the respondents cannot be permitted to act against the petitioner and it would be wholly inequitable to do so considering the huge investments that have been made by the petitioner.

Learned counsel further submits that the criminal cases in the entire list submitted by the said Pradeep Kumar Jha, who is cousin of the petitioner, have been filed either by him or by his family members and there is a long standing dispute regarding land and property between the two branches of the family which has led to filing of many criminal cases and counter cases from both the sides. It is thus, submitted that the respondents ought not to have acted on the basis of the said FIRs, specially considering the fact that either the police has submitted final form in most of the cases or even in Bihra P.S. Case No. 2/2003 leading to Sessions Case No. 28/2006 the petitioner had been ultimately acquitted on 6.8.2012 by the Court of Ad hoc Additional Sessions Judge-I, Saharsa. Similarly, in other cases also the petitioner had been earlier acquitted and all the cases against the petitioner and his family members are false cases which ought not to be relied upon by the respondent-Corporation.

It is also submitted by learned counsel for the petitioner that the action of the respondents is fit to be quashed for the further reason that no show cause was ever issued to the petitioner regarding the complaint made against him nor any opportunity of being heard was given to the petitioner.

Learned counsel for the Indian Oil Corporation, on the other hand, submits that the present case is one of making false declaration and suppressing the facts in the application despite specific provisions in that regard having been made both in the advertisement and Brochure for Selection of RGGLV and thus the petitioner cannot claim that his LOI could not have been subsequently cancelled on the basis of discovery of such false statements made by the petitioner.

It is contended by learned counsel that it is evident not only from the advertisement but also from the affidavit as also clause 16 of the Brochure for Selection of RGGLV that in case any false statement or declaration is made with regard to any fact then the LOI/Distributorship would be liable to be cancelled.

Learned counsel further submits that on the date of filing of the application by the petitioner at least two criminal cases were still pending in which charges had been framed against the petitioner under Sections 307 and 379 respectively of the Indian Penal Code which are charges involving moral turpitude. In support of the same learned counsel relies upon a decision of a Full Bench of this Court in the case of Sarju Prasad Singh Vs. State of Bihar and Others, , in para-8 and relevant part of para-9 of which it has been held as follows:--

"8. As noticed above, though moral turpitude may not admit of a strict definition, nevertheless, the broad parameters within which it is employed is yet not in great doubt either on principle or on earlier precedent. Without attempting to be exhaustive, the three basic indicia of "moral turpitude" may be concretized as under:--

(i) Something which is contrary to justice, honesty or good morals and involves a baseness of mind or attitude.

(ii) Which shock the moral conscience of society in general.

(iii) Something which will attach a depravity of character to the person guilty thereof.

9...............Once the broad angle of approach is settled, the issue herein seems somewhat easy of solution. Applying the aforementioned three indicia, can it possibly be said that the crime of murder would not come within the ambit of either of the three categories. In my view, it is, perhaps, covered by each one of them rather than either of them. It is trite saying that murder is contrary to law and justice and equally to good morals. Indeed, it is one of, and, undisputably the most serious, offence in the penal jurisprudence not in a particular crime, but all over the civilized world. Even in the concept of ancient criminal jurisprudence, the offence of murder had always been classified as a mala in se as against merely mala prohibita. From the very dawn'' of civilization, the destruction of human life in all organized societies (except in war and in a defined and limited classes of exceptions) is a matter of universal disapprobation. It must necessarily be so. To harken back to the test, it is something which from the very beginning has shocked the moral conscience of society in all climes and in all ages. Equally, in our own criminal jurisprudence, the maximum and ultimate punishment of death is provided by the Indian Penal Code therefor. This quantum of punishment is itself an indication of the social and legal disapproval for this Crime. Equally, it appears to me as beyond doubt that murder is a primal crime, which shocks the moral conscience of society in general. The amount of social obloquy which it attracts and the moral shock waves which it generates, would clearly bring it in category (ii) aforesaid. Lastly, I am unable to see how a murderer can be described other than a person of depraved character. To my mind, viewed from any angle and applying any of the three yardsticks, the crime of murder comes squarely within the ambit of an offence involving moral turpitude."

Learned counsel also relies upon a decision to the same effect of the Supreme Court in the case of Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, , in paras 24 and 25 of which it has been held as follows:--

"24. In Pawan Kumar Vs. State of Haryana and another, this Court has observed as under:--

"12. ''Moral turpitude'' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity."

The aforesaid judgment in Pawan Kumar has been considered by this Court again in Allahabad Bank and Another Vs. Deepak Kumar Bhola, and placed reliance on Baleshwar Singh Vs. District Magistrate and Collector, Banaras and Others, wherein it has been held as under:--

"The expression ''moral turpitude'' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man."

In view of the above, it is evident that moral turpitude means anything contrary to honesty, modesty or good morals. It means vileness and depravity. In fact, the conviction of a person in a crime involving moral turpitude impeaches his credibility as he has been found to have indulged in shameful, wicked and base activities."

It is, accordingly, pleaded by learned counsel for the Corporation that an attempt to murder cannot receive a different classification than the act of doing the murder itself and if murder involves offence of moral turpitude then the offence of attempt to murder would equally be considered moral turpitude keeping in view the fact that the maximum punishment for the offence under Section 307 of the IPC is a sentence of imprisonment for life. Similarly, learned counsel submits that an offence under Section 379 IPC is undisputedly one of moral turpitude. It is thus, urged by learned counsel that the petitioner by not referring to the criminal cases in which charges had been framed under Section 307 apart from others and 379 respectively has definitely concealed the facts and made a false declaration which makes him liable for cancellation of LOI and, as a matter of fact, if the same had been discovered even later, then the distributorship could have been cancelled and no plea is available to the petitioner that such action should have been taken before the issuance of LOI. It is submitted that the petitioner having been guilty of concealment/false declaration, cannot be permitted to take any such plea.

Learned counsel also submits that the Brochure/Guidelines for Selection of RGGLV does not provide for issuance of any show cause in the matter or that the principles of natural justice were required to be complied with; further, the petitioner has been unable to show any prejudice as all the facts and materials have been brought before this Court and the petitioner does not deny the factum of his having filed the said affidavit as also the fact of pendency of at least two such criminal cases for the offences as stated above. It is thus, submitted that no prejudice has been caused to the petitioner by non-compliance of the principles of natural justice in the matter.

On a consideration of the facts and circumstances of the case, it is evident that the petitioner has filed an affidavit concealing the fact that he was involved in several criminal cases and particularly in the two sessions trials which were pending on the date of application in which charges had been framed in one case, inter alia, under Section 307 and in the other, inter alia, under Section 379 IPC. That being so, the petitioner in terms of the affidavit itself as also in terms of the provisions of the advertisement and Clause-16 of the Brochure for Selection of RGGLV has made himself liable for the cancellation of the LOI or even the Distributorship of RGGLV. This Court has no hesitation in saying following the decision of the Full Bench in Sarju Prasad Singh''s case (supra) that the offence of attempt to murder would equally fall in the category of offence involving moral turpitude.

So far as the principle of natural justice is concerned, there can hardly be any doubt that where a person is deprived of the distributorship after the LOI has been issued, the proper course for the Corporation to follow is to give an opportunity to the person to explain, which has not been done in the present case. However, the matter was not disposed of at the outset on the said technical ground and was admitted for hearing and all the documents and materials have been brought on the record and the facts relied upon by the respondent-Corporation in support of its action have not been denied by the petitioner. Thus, sending the matter back at this stage on the ground of violation of principles of natural justice cannot be of any avail as ultimately the petitioner has been given full opportunity before this Court to defend his stand and whatever he had to say has been considered and duly answered in the counter affidavit and the supplementary counter affidavit.

Thus, it cannot be said that the petitioner in the present matter has been prejudiced on account of non-compliance of the principles of natural justice. It is a settled proposition that the principles of natural justice cannot be invoked merely as a shibboleth or a ritual and a person who invokes the said principles may be required to show the prejudice caused. Thus, in the light of the aforesaid discussions, I see no reason to interfere with the action of the respondents in the matter. The writ application is, accordingly, dismissed.