1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.7379/2009 Jai Ambey Indian Oil & another Versus Indian Oil Corporation Ltd. & others DATE OF ORDER --- September 07,2009 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Dinesh Yadav, for the petitioners Mr.A.K.Bhargava with Mr.Ravindra Mathur, for the respondents BY THE COURT (1) With the consent of counsel for the parties, the case was heard finally. (2) By this writ petition, the petitioners have challenged the order dated 23.3.2009 whereby the dealership has been terminated for violation of Clause-8 of Marketing Disciplinary Guidelines, 2005 (in short `MDG- 2005) according to which selling of normal MS/HSD as branded fuel, the penal action to be taken by the Corporation is termination of the dealership. (3) Submission of counsel for the petitioners is that petitioner No.2 is a freedom fighter and his case is covered under Clause-14 of 2 the MDG-2005 which relates to over charging of MS/HSD, and the penalty provided is fine of Rs.25,000/- and suspension of sales and supplies of all products for fifteen days. Counsel further submits that it was first default for which explanation was also given. Counsel also submits that earlier to the present dispute, the petitioner was supplied extra mile diesel and subsequently also on 31.7.2008, the petitioners have deposited the amount for the same, therefore, the mistake committed by the petitioners is bona fide. (4) Mr.Bhargava, appearing for the respondent Corporation has raised the preliminary objection that the writ petition is not maintainable in view of the judgment of the Supreme Court in Harbanslal Sahnia and another V. Indian Oil Corporation Ltd. and others (2003) 2 SCC 107) as the same does not come under any of the three exceptions. Otherwise also, the petitioner No.2, being a freedom fighter, cannot claim exemption from any of the penal action and the respondent Corporation has rightly invoked Clause 8 of the MDG-2005. 3 (5) I have gone through record of the writ petition and further considered rival submission of counsel for the parties. (6) Before proceeding further, it is relevant to reproduce relevant Clauses 8 and 14 of Appendix-1 MDG-2005 Penal Actions for malpractices/irregulariies at Retail outlets – MS/HSD. The same are as under: Sl. No. Nature of Irregularity Penal Action 1 Penal Action 2 Penal Action 3 8 Selling of Normal MS/HSD as Branded fuels Termination 14 Over charging of MS/HSD Fine of Rs.25,000/- & suspension of sales of all products for 15 days Fine of Rs.50,000/- & suspension of sales and supplies of all products for 30 days Termination (7) There is no dispute that it was the first default of issuance of four bills of MS/HSD extra premium for which the petitioners have given explanation that the four bills had been issued by the Salesman at the insistence of the consumer that they were being reimbursed only for extra premium. (8) I am of the view that since the matter relates to the termination of the dealership of petrol pump, therefore, certainly it will effect the livelihood of the petitioner No.2, 4 who is the freedom fighter. Therefore, I find violation of Article 21 of the Constitution of India and the objection of Mr.Bhargava of availability of alternate remedy is not tenable. Moreover, present case is not of selling of normal MS/HSD as branded fuel but the same relates to only four bills and further since the consumers have also given affidavits to the effect that they had insisted for giving bills of extra premium petrol, therefore, the mistake appears to be bona fide and Clause 14 of the MDG-2005 relating to over charging of MS/HSD will apply. (9) Accordingly, the termination order dated 23.3.2009 is quashed and set aside being illegal. In case the petitioners deposit Rs.25,000/- (rupees twenty five thousand) within a period of fifteen days from today, then supply of the petrol pump will be restored by the respondents. (10)The writ petition is allowed, as indicated above. (Prem Shanker Asopa) J. G