IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 372 of 2008(T) ------------------------------------- PETITIONER(S): ------------------------ 1. PUTHUSSERY EARTH MOVERS, BHARAT PETROLEUM CORPORATION DEALERS, KANJOOR, ALUVA, ERNAKULAM-683575, REPRESENTED BY ITS MANAGING PARTNER. 2. P.D. SAJI, S/O. DEVASSIA, PUTHUSSERY HOUSE, KANJOOR, ALUVA,ERNAKULAM DIST. BY ADVS. SRI.K.JAJU BABU, SMT.M.U.VIJAYALAKSHMI, SRI.BRIJESH MOHAN, SRI.T.S.SHYAM PRASANTH. RESPONDENT(S): ---------------------------- BHARAT PETROLEUM CORPORATION LTD., ERNAKULAM TERRITORY, IRUMPANAM INSTALLATION, IRUMPANAM, COCHIN-682 309, REPRESENTED BY ITS TERRITORY MANAGER (RETAIL). BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE, BY ADV. SRI.S.SUJIN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.372/2008 T APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF SHOW CAUSE NOTICE NO.TM.E.EKM.37 DTD. 2/06/05 ISSUED BY THE RESPONDENT TO THE PETITIONERS. P2: COPY OF TEST REPORT DTD. 8/04/05 ISSUED BY THE RESPONDENT TO THE PETITIONERS. P3: COPY OF TEST REPORT DTD. 8/04/05 ISSUED BY THE RESPONDENT TO THE PETITIONERS. P4: COPY OF REPLY DTD. 8/06/2005 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. P5: COPY OF DEMAND DRAFT SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT ON 8/08/05. P6: COPY OF JUDGMENT DTD. 27/07/05 IN WP(C) NO.20599/05 OF THIS HON'BLE COURT. P7: COPY OF JUDGMENT DTD. 10/08/05 IN W.A.NO.1631/05 OF THIS HON'BLE COURT. P8: COPY OF LETTER NO.TM.E.KANJOOR DTD. 4/8/05 ISSUED BY THE RESPONDENT TO THE PETITIONER NO.1. P9: COPY OF LETTER NO.TM.E.EKM.37 DTD. 22/08/05 ISSUED BY THE RESPONDENT TO THE 1ST PETITIONER. P10: COPY OF PROCEEDINGS NO.T.M.E.EKM.37 DTD. 3/09/05 ISSUED BY THE RESPONDENT. P11: COPY OF PARTNERSHIP DEED DTD. 26/06/2003. P12: COPY OF MEMORANDUM OF AGREEMENT BETWEEN RESPONDENT AND PETITIONERS DTD. 28/02/04. P13: COPY OF RELEVANT EXTRACT OF MARKETING DISCIPLINE GUIDELINES ISSUED BY THE RESPONDENT. Kss ..2/- ..2.... WPC.NO.372/2008 T P14: COPY OF JUDGMENT DTD. 28/01/02 IN O.P.NO.2876/02 OF THIS HON'BLE COURT. P15: COPY OF JUDGMENT DTD. 19/06/06 IN WP(C) NO.28620/05 OF THIS HON'BLE COURT. P16: COPY OF JUDGMENT DTD. 5/10/06 IN W.A.NO.1718/06 OF THIS HON'BLE COURT. P17: COPY OF PROCEEDINGS NO.TM.E.EKM. 37 DTD. 5/01/07 ISSUED BY THE RESPONDENT. P18: COPY OF JUDGMENT DTD. 31/01/07 IN WP(C) NO.32564/05 OF THIS HON'BLE COURT. P19: COPY OF PROCEEDINGS NO.TM.E.EKM. 37 DTD. 9/04/07 ISSUED BY THE RESPONDENT. P20: COPY OF PLAINT IN O.S.NO.497/05 FILED BY THE RESPONDENT BEFORE THE MUNSIFF COURT, NORTH PARUR. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE LETTER DTD. 13/10/2005 SENT BY THE RESPONDENT TO THE PETITIONER. /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.372 Of 2008 ----------------------------------------------------- DATED THIS THE 20th DAY OF OCTOBER, 2010 J U D G M E N T The petitioners herein are aggrieved by the termination of the dealership of a petrol outlet. Exhibit P9 is the order passed by the authority, the respondent herein, terminating the dealership. 2. The retail outlet was started on 11.3.2004. On 12.5.2005, petrol and diesel were unloaded by a transport contractor. On the same day, an inspection was conducted by the Officer of the Corporation and samples were drawn for the purpose of testing. Next day stock verification was also done. Thereafter the 1st petitioner was served Exhibit P1 notice alleging adulteration as well as variation of the stock and was called upon to explain why action should not be initiated for failure of the sample and for the stock variation. 3. According to the petitioners, the temporary salesman Linu James was present on 12.5.2005 while decanting was being done. He confessed that while decanting diesel from the tanker lorry, some diesel was poured into the underground petrol tank by mistake and therefore the petitioners maintained that it is W.P.(C)No.372/08 -2- only a mistake and incorporating such details, Exhibit P4 reply was given. 4. Earlier, this Court by Exhibit P6 judgment accepting the contentions of the petitioners and considering the fact that the petitioners have suffered suspension for more than two months ordered the respondent to resume the sale and supply of petroleum products with a further direction to pass final orders in the disciplinary action. 5. At the instance of the respondent, Writ Appeal No.1631/05 was filed challenging the above judgment, which was disposed of by Exhibit P7 judgment, wherein the judgment of the learned Single Judge was set aside and Corporation was directed to pass a final order within the time provided therein. The final order was passed by the Corporation, namely Exhibit P10, which was challenged in a later Writ Petition and Exhibit P15 judgment was passed. Therein also a direction was issued to reconsider the matter, after referring to Exhibit P13 guidelines. An order was passed thereafter, which is produced as Exhibit P17, which was under challenge in W.P.(C)No.32564/06 and the Writ Petition was allowed and the respondent was directed to pass fresh order. W.P.(C)No.372/08 -3- Exhibit P19 is the resultant order now passed by the respondent. 6. The respondent has filed a counter affidavit. 7. The learned counsel for the petitioners submitted that the extreme penalty of termination need not have been resorted to by the Corporation in the light of the circumstances pointed out by the petitioners. 1st petitioner is a partnership firm. It is further pointed out that only four out of six partners have signed the agreement and there was a civil suit between the parties which also stands dismissed, in favour of the petitioners. The learned Senior Counsel for the respondent submitted that an appeal from it has been filed. 8. I am not going into the contentions of both parties, as it is pointed out by the learned Senior Counsel appearing for the respondent that the petitioners have got a remedy to approach the appellate authority, namely, the Regional Executive Director, Bharat Petroleum Corporation Ltd., Madras. The dispute mainly centers around on the question whether there was any intentional act on the part of the petitioners. Therefore the appellate authority will have to consider various aspects including the circumstances pointed out by the petitioners. Therefore, it will be W.P.(C)No.372/08 -4- open to the petitioners to file an appeal before the appellate authority. 9. The outlet is now remaining idle. The learned counsel for the petitioners submitted that in the event of the appeal being not allowed in favour of the petitioners, then the respondent may have to vacate the premises and dismantle the machinery. 10. If the petitioners file an appeal along with a copy of this judgment within a period of three weeks, the same will be considered by the appellate authority and appropriate decision will be taken within a further period of two months, after hearing the petitioners. Till the disposal of the appeal so filed, the respondent will not induct third parties to the premises of the outlet. The Writ Petition is disposed of as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn