IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WP(C).No. 14755 of 2007(F) -------------------------- PETITIONER(S): --------------- ABDUL NAZEER @ NAZEER, S/O.ABU, RESIDING AT VADAKKEPARAMBU HOUSE, P.O.KOLAZHY, KOLAZHY VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): --------------- 1. THE CHAIRMAN, BHARATH PETROLEUM CORPORATION LTD., MUMBAI. 2. THE BHARATH PETROLEUM CORPORATION LTD., A GOVERNMENT OF INDIA ENTERPRISES, ERNAKULAM TERRITORY, IRUMPANAM INSTALLATION, COCHIN. 3. TERRITORY MANAGER (RETAIL MANAGER) THE BHARATH PETROLEUM CORPORATION LTD., IRUMPANAM INSTALLATION, IRUMPANAM, COCHIN-682 309. 4. THE DEPUTY MANAGER, SALES, THE BHARATH PETROLEUM CORPORATION LTD., OFFICE OF THE TERRITORY MANAGER, IRUMPANAM INSTALLATION, IRUMPANAM, COCHIN-682 309. 5. K.E. TYTES, THE MOBILE LAB IN-CHARGE, OFFICE OF THE STATE LEVEL CO-ORDINATOR, C/O.INDIAN OIL CORPORATION, PANAMPILLY NAGAR, COCHIN. 6. STATE BANK OF INDIA, THRICHUR BRANCH, DHARMODAYAM BUILDING, ROUND EAST, THRICHUR-680 001, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER. ADV. SRI.K.K.CHANDRAN PILLAI FOR R6 SRI.A.S.SAJUSH PAUL FOR R6 SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R1 TO 4 SRI.S.SUJIN FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). No. 14755/2007 APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE LEASE DEED DTD.7.2.05. P2. COPY OF THE LETTER DTD.20.6.06. P3. COPY OF THE TEST REPORT. P4. COPY OF THE TEST REPORT. P5. COPY OF THE JUDGMENT DTD.28.6.06. P6. COPY OF THE NOTICE DTD.18.7.2006. P7. COPY OF THE REPORT OF THE ENQUIRY DTD.1.8.08. P8. COPY OF THE TERMINATION NOTICE DTD.17.8.06. P9. COPY OF THE REPRESENTATION DTD.29.3.07. P10. COPY OF THE NOTICE DTD.4.1.07. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.14755 of 2007 ================== Dated this the 5th day of August, 2009 J U D G M E N T The petitioner is a dealer in petroleum products of the Bharat Petroleum Corporation Ltd. On 20.6.2006, the 5th respondent conducted a surprise check in the petitioner's retail outlet and took samples of petroleum products. On testing the same, it was found that the MS sample did not meet the standards prescribed. Therefore, the petitioner was given a show cause notice and he was directed to stop sales. The petitioner challenged the same in W.P.(C). No.16584/2006, in which, this Court, by Ext.P5 judgment, directed the respondents to complete the enquiry pending in respect of the same. Pursuant thereto, by Ext.P6 notice dated 18.7.2006, the petitioner was invited for a hearing on the same. The petitioner participated in the hearing. Ext.P7 is the proceedings of the enquiry. In that, the 3rd respondent found that the petitioner had adulterated the MS supplied to him for sales. On that basis, the petitioner's dealership was cancelled, by Ext.P8 order. That is under challenge in this writ petition. 2. The petitioner raises two contentions. First is that the notice was issued by the 3rd respondent and he himself conducted the enquiry, which does not ensure impartiality. According to the petitioner, the enquiry should have been conducted by an independent person. Secondly, he would submit that there is no evidence to show that he is guilty of any malpractice of adulteration. He would submit that shortly before the samples were collected, there was an accident W.P.C.14755/07 2 in the retail outlet when a car hit the pump, which may have resulted in the sample not meeting the specified standards. The petitioner would further submit that the petitioner was supplied with MS in a tanker lorry, which was earlier carrying HSD, which may have also resulted in the alleged adulteration. 3. The counsel for the respondents would dispute all the contentions of the petitioner. According to him, specific procedure is laid down for the purpose of collection and testing of samples. As and when the petroleum products are supplied to the petitioner before decanting into the tank of the retail outlet, samples are collected from the lorry and the petitioner is also supplied with one set of samples, which he is expected to preserve for comparison at a later stage, when samples are collected from the outlet for verification. Admittedly the petitioner did not retain the lorry samples which were entrusted to him. He would further submit that the petitioner has no case that the test results are wrong. According to him, the petitioner never informed the company about any accident in the retail outlet. He also never complained to the company about supply of MS in a tank earlier used for transporting HSD. According to the counsel for the respondents, these are all afterthoughts to cover up his misconduct. He reads out from Ext.P7 enquiry proceedings and points out that all the contentions now raised were raised in the enquiry itself by the petitioner and he could not satisfactorily explain the same, on detailed questioning, which W.P.C.14755/07 3 itself would go to show that all these contentions are merely lame excuses. 4. The counsel for the petitioner would submit that the petitioner could not preserve the lorry samples because he did not readily have materials required for sealing the samples. 5. I have considered the rival contentions in detail. 6. At the outset, I note that the petitioner has no case that the samples do meet the standards prescribed. He also does not have a case that the test results were wrong or that the test has been conducted improperly. Therefore, it is a proved fact that the samples taken from the petitioner's retail outlet on testing did not satisfy the prescribed standards. Elaborate procedures are prescribed for taking samples at the time of delivery and at the time of verification. In order to safeguard the interest of the dealer, a set of samples are entrusted with the dealer. The petitioner has no case that the lorry samples were not given to the petitioner. His explanation that he did not keep the same since he did not readily have the materials required for sealing the samples is far from convincing. If that was correct, what he could have done is to inform the company at that time itself, which admittedly, the petitioner had not done. So also when the petitioner was convinced that MS was supplied to the petitioner in a tank earlier used carrying HSD, as a prudent dealer, he would have immediately complained to the company, since he was very well aware that, in such W.P.C.14755/07 4 a situation, on verification, his samples would not satisfy the tests prescribed for standards. Even otherwise, if that was the case, he would certainly have preserved the lorry samples because he must have been aware that later on, on verification, he would be found responsible. I have also gone through Ext.P7 enquiry proceedings. The answers given by the petitioner to the questions put to the petitioner were far from convincing. Therefore, I do not find any infirmity in the findings in Ext.P8 that the petitioner is guilty of malpractice. 7. I also do not find any merit in the contention that an independent person should have conducted the enquiry. The Territory Manager, one of the senior most officers of the company, had conducted enquiry. The petitioner has no personal allegations of bias against the Territory Manager. The enquiry proceedings also do not show any infirmity whatsoever in the proceedings. Enquiry could have been conducted only by an officer of the company itself. That has been done by a senior officer of the company. The petitioner cannot have any grievance in respect of the same also. For all the above reasons, I do not find any merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge W.P.C.14755/07 5