Sonam Gandhi vs Hindustan Petroleum Corporation Limited and Others

Hon''ble Shri Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 23-12-2010 (Annexure - P/1) whereby the empanelment of the petitioner for establishing as dealer of Hindustan Petroleum Corporation Limited (for short "HPCL") was cancelled on the ground that the experience certificate of the petitioner was not genuine and the land was outside the advertised stretch.

The facts, in brief, as projected by the petitioner, are that the respondent No.1 - HPCL issued an advertisement dated 26-8-2009 (Annexure - P/2) for appointment of dealer for retail outlet of petrol pump of HPCL at location No.83 Revenue District Janjgir-Champa, Chhattisgarh, clause - OP (W). The petitioner applied for the said dealership. According to the advertisement, the applicants were required to submit the experience certificate along with the application form. The petitioner submitted her application on 25-9-2009 with the requisite documents including the experience certificate dated 20-9-2009 (Annexure - P/4) issued by the respondent No.5. Thereafter, the petitioner appeared before the selection committee for interview at Raipur on 29-7-2010 along with all the original documents, as enclosed with the application form. After the interview, the result was declared by the selection committee; the petitioner secured highest marks in the interview and was placed at S.No.1 in the list of empanelment and accordingly, was selected for the dealership of the retail outlet of petrol pump, as aforestated.

Thereafter, it appears that one Vinod Kumar Aachal has obtained some information under the provisions of the Right to Information Act, 2005 that no lady was employed in the petrol pump of the respondent No.5. On the basis of said information, he made a complaint to the respondent HPCL. After receipt of the said complaint, without affording an opportunity of hearing to the petitioner and without conducting proper enquiry, HPCL passed the impugned order canceling the candidature of the petitioner. Thus, this petition.

Shri Rajeev Shrivastava, learned counsel appearing with Shri Sameer Shrivastava, learned counsel for the petitioner, would submit that it is not necessary to work for salary. Admittedly, the petitioner was not paid any salary by the respondent No.5. However, it cannot be denied the fact that she was working regularly for experience, as has been stated by the respondent No.5 in affidavit on oath dated 30-12-2010 (Annexure - P/8) and further has clearly written to HPCL vide letter dated 4-10-2010 (Annexure - P/7) that the petitioner was working with the petrol pump of the respondent No.5 for experience without any payment. Thus, holding the experience certificate of the petitioner as not genuine is contrary to the facts. Shri Shrivastava would further submit that the petitioner was not afforded any opportunity of hearing and no enquiry was conducted. The petitioner has worked in the petrol pump from 16-2-2008 without any payment, as the experience does not mean that there is a pre-condition of making payment.

On the other hand, Shri Koshy, learned counsel appearing with Shri Roy, learned counsel for the respondents No.1 to 3/HPCL, would submit that against the petitioner there was a complaint on two grounds that the experience certificate of the petitioner was not genuine and the land was outside the advertised stretch. The matter was investigated by the Senior Officer of HPCL and found that a false document of experience certificate was furnished by the petitioner.

Shri Koshy would further submit that as per clause (J) of the advertisement dated 26-8-2009, if any statement or certificate is found forged or false, the dealership was liable to be terminated without assigning any reasons. If there is no payment and further there is no mention of the name of the petitioner in the record of respondent No.5 showing as working, it cannot be held that she had regularly worked and obtained experience certificate on the basis of letter or affidavit. Even the payment was not made, there could have been mention in the list of workers without payment, which is even otherwise is requirement to run a retail outlet. Thus, on account of false experience certificate, the empanelment of the petitioner was cancelled. Shri Koshy would submit that the cancellation of the candidature of the petitioner was not on the ground of other fact i.e. the land was outside the advertised stretch.

Shri Koshy would next submit that during the course of investigation it came out that in between 16-2-2008 to 20-9-2009, the petitioner being a college student could not officially devote as a full time manager and supervisor in the retail outlet. From the enquiry, it also came out that the respondent No.5 had let the petitioner work at the retail outlet on honorarium basis and not as a regular worker discharging responsible duties. There were three different letters issued by the respondent No.5 by which the experience claimed by the petitioner could never be substantiated. Shri Koshy would also submit that in case of applying a common logic it may be appreciated that when a column of experience is provided in the advertisement, the same inculcates in itself a meaningful or practical experience.

Shri Patel, learned counsel appearing for the respondent No.5, while supporting the contention of the petitioner, would submit that there is no reason to disbelieve the respondent No.5 when the respondent No.5 has categorically by letter and in affidavit on oath had stated that the petitioner had worked in the petrol pump of respondent No.5 since 16-2-2008 to December, 2009. Shri Patel would further submit that the payment of salary is not a necessary pre-condition for experience.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

On perusal of the advertisement, in clause 8, it appears that while assessing the candidature of a candidate, the marks are awarded for different categories likes for experience, for age, for different categories, etc. For individual applicants out of 100 marks, 35 marks for land & other infrastructure facilities, 25 marks for facility of capital & financial assistance, 15 marks for academic qualification, 10 marks for capacity of trading, 4 marks for age, 4 marks for experience, 5 marks for professional skill and 2 marks for personality.

In Krishan Lal v. State of Haryana & Ors., the argument was that the certificates were issued by the industries, which were not existing as no provident fund was deposited by them. The Supreme Court observed as under :

In any event, non-deposit of the provident fund in terms of Employees'' Provident Funds & Miscellaneous Provisions Act, 1952 by itself does not lead to the conclusion that the establishments are non-existing. Provident fund need to be deposited provided the said Act applies. It may be even otherwise a violation of the provisions of the said Act, but only by reason thereof, the certificates granted by them would not be treated to be nullities.

In the case on hand, it appears that no opportunity of hearing was afforded to the petitioner to establish the fact that asto how she has submitted the experience certificate and secondly whether the certificate was genuine or not. Even otherwise, while assessing the suitability of a candidate marks are awarded for different purposes. The respondent HPCL should have examined the case form that angle also asto whether even after deducting marks obtained for experience what is the position of the petitioner. It appears that pursuant to cancellation of empanelment, no allotment has been made, as there was an interim order passed by this Court on 7-12011.

In view of foregoing, the impugned order dated 23-12-2010 (Annexure - P/1) is quashed. However, the respondents No.1 to 3/HPCL are directed to reconsider the case of the petitioner in the light of abovestated observation and pass fresh order, in accordance with law and on its own merits.

As an upshot, the writ petition is allowed to the extent indicated above.

There shall be no order asto costs.