IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 378 of 2010(V) ------------------------------------- PETITIONER(S): ------------------------ DEEPTHI.P,W/O.MR.SREENATH.P.K, "SREEPADMAM",AYANCHERI.P.O,VADAKARA-673 544. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, BYADV. SRI. KALEESWARAM RAJ. RESPONDENT(S): ---------------------------- 1. HINDUSTAN PETROLEUM CORPORATION LIMITED, 17,JAMSHEDJI TATA ROAD,MUMBAI-REPRESENTED BY ITS GENERAL MANAGER. 2. THE SENIOR REGIONAL MANAGER,HINDUSTAN PETROLEUM CORPORATION LIMITED L.P.G.REGIONAL OFFICE,BALA VILLAGE,(VIA)KATIPALLA, MANGALORE-575 030. 3. THE ZONAL MANAGER-L.P.G,HINDUSTAN PETROLEUM CORPORATION LIMITED,NATARAJAN BUILDING, IV FLOOR, P.B.NO.3045,GANDHI IRWIN ROAD, CHENNAI-600 008. 4. THE DEPUTY GENERAL MANAGER-LPG SOUTH ZONE,THALAMUTHU NATARAJAN BUILDING,1,GANDHI-IRWIN ROAD,P.B.NO.3045,EGMORE,CHENNAI-600 008. R2 BY ADV. SRI.E.K.NANDAKUMAR, SC, HPCL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON 28/10/2010 DELIVERED THE FOLLOWING: Kss WPC.NO.378/2010V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DTD.24/1/2008. P2: COPY OF STATEMENT OF MARKS PREPARED BY THE RESPONDENTS DTD. 10/04/2008. P3: COPY OF THE BROCHURE CONTAINING GUIDELINES ISSUED BY THE RESPONDENT. P4: COPY OF THE AFFIDAVIT DTD. 21/01/2008 WITH SUPPORTING DOCUMENTS. P5: COPY OF GENERAL INSTRUCTIONS ISSUED BY 1ST RESPONDENT COMPANY. P6: COPY OF JUDGMENT DTD. 25/03/2009 IN WP(C) NO.7424/09. P7: COPY OF LETTER DTD. 2/04/2009 ISSUED BY THE 2ND RESPONDENT. P8: COPY OF JUDGMENT DTD. 8/04/2009 IN WP(C) NO.12290 OF 2009 (E). P9: COPY OF COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DTD. 11/04/2009. P10: COPY OF ORDER DTD. 09/07/2009 ISSUED BY 4TH RESPONDENT. P11: COPY OF CERTIFICATE DTD. 12/05/2009 ISSUED BY MENON NARAYANAN & NEDUNGADI, CHARTERED ACCOUNTANTS. P12: COPY OF NOTICE FOR THE APPOINTMENT OF LPG DISTRIBUTORS, WHICH APPEARED IN 'THE HINDU' DTD. 27/12/2007. P13: COPY OF LETTER NO.KeSO;LPG:272(A)(5)/RTI/276 DTD. 01/06/2009 ISSUED BY DY.GENERAL MANAGER, INDIAN OIL CORPORATION LIMITED. P14: COPY OF THE JUDGMENT DTD. 23/11/2009 IN WP(C) NO.20398/2009. P15: COPY OF THE LETTER DTD. 23/12/2009. P16: COPY OF THE LETTER DTD. 23/12/2009 ISSUED BY THE INDIAN OIL CORPORATION. P17: COPY OF THE LETTER DTD. 23/05/2009. Kss ..2/- ..2.... WPC.NO.378/2010 V RESPONDENT'S EXHIBITS: R2(A): COPY OF THE AFFIDAVIT DTD. 21/1/2008 IN FORMAT B., SUBMITTED BY THE PETITIONER. R2(B): COPY OF THE RELEVANT EXTRACT OF CLAUSE 19 (G) NOTIFICATION DTD. 27/12/2007. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 378 of 2010-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of October, 2010. JUDGMENT The petitioner challenges Ext.P15, whereby she is disqualified for candidature for LPG Distributorship. This is the fourth round of litigation as far as the issue involved is concerned. 2. The petitioner was ranked first in the assessment of eligibility for allotment of LPG Distributor ship by the first respondent at Kuttiadi in Kozhikode District in open category (women). Ext.P1 is the copy of the application submitted by the petitioner. Forty applicants were interviewed by the Dealer Selection Board and the petitioner secured 99 marks out of 100 and thus was ranked first. Ext.P2 is the copy of the statement of marks awarded to the candidates. The petitioner is serial No.35 in Ext.P2. In Ext.P2 the marks awarded under different heads are shown and we are mainly concerned with the marks awarded under the heading “capacity to provide finance” where she was granted a total of 35 marks under different components. A copy of the brochure has been produced as Ext.P3. Under the sub heading “income” 5 marks are allowable. The dispute herein is with regard to the allotment of the above 5 marks under the sub-heading wpc 378/2010 2 “income”. 3. The petitioner had furnished various details of the income as per the affidavit Ext.P4 dated 21.1.2008. The affidavit was filed in the prescribed format showing her total income for the assessment year 2007- 2008 as Rs.2,47,763/- and that of her husband as Rs.2,78,340/-. A field inspection was conducted by the officers of the Company on 22.9.2008 and the originals of the documents were verified. They inspected the proposed godown site and the show room site also and all those were found to be satisfactory. The petitioner had produced documentary evidence in the form of Fixed Deposit receipts and other documents to show that she holds bank deposits of Rs.24,32,289/- and a saving bank balance of Rs.3,25,416/-. She proved her possession and ownership over 50 cents of land also. 4. It is the case of the petitioner that after two weeks of the field inspection the third respondent contacted the petitioner telephonically and asked her to produce income tax return for the year 2007-2008 in respect of the details given in Ext.P4 affidavit. Thereafter, the petitioner furnished income tax returns after submitting the same, even though it was not necessary as per clause 14.1 of Ext.P5, as the said clause only provides for notarised affidavit declaring annual income. wpc 378/2010 3 5. Ultimately as no action was being taken, the petitioner filed W.P. (C) No.7424/2009 seeking for various reliefs. In the said writ petition, learned counsel for the respondents made a submission that the petitioner was disqualified and the writ petition was disposed of as per Ext.P6 judgment directing the second respondent to issue a notice detailing the grounds on which the petitioner is sought to be disqualified. But without issuing a notice, Ext.P7 was furnished as an order which was challenged in W.P.(C) No.12290/2009. This Court directed Ext.P7 to be treated as a notice and directed the petitioner to file objection in the matter and Ext.P8 is the copy of the judgment. Ext.P9 is the reply given by the petitioner and a hearing was also offered. Later, an order was passed as per Ext.P10 by the Deputy General manager, LPG (SZ) even though the hearing was conducted by the Zonal Manager - LPG. This was challenged by the petitioner in W.P.(C) No.20398/2009 which was allowed as per Ext.P14 and this Court directed the Senior Regional Manager to hear the petitioner and pass appropriate orders. Ext.P15 is the order now passed by the Senior Regional Manager. 6. Heard Shri K.R.B. Kaimal, learned Senior Counsel and Shri Kaleeswaram Raj for the petitioner and Shri E.K. Nandakumar, learned Standing Counsel appearing for the respondents. wpc 378/2010 4 7. Shri K.R.B. Kaimal, learned Senior Counsel appearing for the petitioner submitted that the approach made by the respondents in Ext.P15 is patently incorrect and illegal. The petitioner is sought to be disqualified on the plea that the income tax returns supporting the income were not produced as supporting documents along with the application. It is submitted that the petitioner was not an assessee to income tax and the returns were filed only after the field officers wanted to make available income tax returns. It is submitted that the affidavit alone was required going by the requirements of the application. There is no dispute with regard to the income that is shown in the affidavit also. It is therefore submitted that allotment of marks, viz. five towards “income” is perfectly justified. 8. A reading of various clauses in Ext.P1 application will show that what is required in clause 14.1 is the following: “Income pertaining to last Financial Year. Attach notarised affidavit as per Annexure B.” The affidavit attached by the petitioner is in the form prescribed which has been produced as Ext.P4, wherein the petitioner's income is shown as Rs.2,47,763/- and that of her spouse as Rs.2,78,340/-. Copies of the documents have been attached, viz. salary certificates and Form 16 in respect of her husband, certificates from Banks, etc. etc.. The certificates wpc 378/2010 5 from various banks show the details of Fixed Deposits and the interest generated and other details, which are not disputed after due verification. The reasons stated in various orders, viz. Exts.P7, P10 and P15, if analysed, it will be seen unsustainable reasons have been adopted to disqualify the petitioner in them. 9. In Ext.P7 it was mentioned that the income tax returns have subsequently been filed and not on or before the date of application, i.e. 24.1.2008 which is a violation of clause 19 of the advertisement and that the information given in the application is found incorrect/false. In Ext.P10 the reason shown in para 5 is that as per the Income Tax Act, she qualify to be treated as Income Tax assessee and ought to have filed the Tax returns upon completion of the Assessment year, as per the procedure. During the field verification it was found that the petitioner was not in possession of the Income Tax Returns neither for self nor spouse and the same were filed much later with penalty. Thus, the petitioner was not in possession of valid supporting documents in the form of Income Tax returns while making claim about Annual Gross Income in the application which amounts to providing unsupported information on the basis of which five marks were awarded to her. 10. In Ext.P15 the reasons shown are the following: As per the wpc 378/2010 6 format of the notarised affidavit (Annexure B) given in the advertisement it is clearly mentioned as per point 2, that if the applicant is a payee of income tax, a copy of the income tax return should be attached. No copy of the income tax return was furnished along with the affidavit as required. The Income Tax Returns of the petitioner and her husband have been subsequently filed and that they were not in possession of the same before the date of application neither for self nor spouse as the same was filed much later with penalty. Thus, the petitioner was not in possession of valid supporting documents in the form of Income Tax return documents while making claims about annual gross income in the application. This amounts to providing unsupported information. Hence the 5 marks attached to the petitioner on this basis was incorrect. 11. Learned Senior Counsel for the petitioner invited my attention to Ext.P9 reply given by the petitioner, wherein the petitioner has clearly mentioned that she had attached the notarised affidavit as per Annexure B with copies of the relevant supporting documents of her and her husband. The petitioner has also submitted therein that she had never claimed that herself or her husband had filed Income Tax returns before the date of application and belated submission of Income Tax returns cannot be treated as a ground to reject the candidature. What was required under the brochure wpc 378/2010 7 or general conditions is only an affidavit which was duly submitted. It was not necessary to file income tax returns. 12. A reading of Ext.P9 would clearly show that the petitioner was not an assessee to Income tax and had not filed any return prior to the date of application. The return was submitted by paying penalty later. Therefore, it is not a case where on the date of filing of the application or prior to that returns had been submitted with the Income Tax department. Therefore, it is not a case where they were in possession of Income Tax returns to support the income claimed and there is a failure on their part to produce the same along with the application. Violation of clause 19(h) is not there. Actually, it is the other way round. They submitted the return only after the field verification was made as the field officers demanded for that. The compliance of the same cannot result in disqualification at all. 13. The question is whether in such circumstances, it could be presumed that the claim in the application is unsupported by relevant documents. 14. Learned Standing Counsel for the respondents submitted that in the form prescribed in the affidavit, viz. Annexure B contained in page 90 of the paper book, there is a stipulation to the following effect: “ If the applicant is payee of Income Tax, a copy of Income Tax Return should be wpc 378/2010 8 attached.” It is therefore submitted that as the petitioner had submitted Income Tax return only later and the return itself was filed only after the application was filed, it is clear that the same was not a supporting document available at the time of filing of the application. 15. Evidently, the above argument cannot be accepted. It is not a case where the petitioner had suppressed anything about the income. There is no case that the income shown is incorrect. The documents produced by the petitioner along with the application will show that the salary certificates of both the husband and wife, details of the Fixed Deposit receipts, interest certified by the banks, etc. have been produced. Form 16 in respect of the salary of her husband was also produced. It is not a case where the petitioner and her husband were assessees to Income tax. Therefore, the question of any suppression of material document does not arise in this case. This aspect has been lost sight of by the respondents while passing the impugned orders. Returns need be submitted along with the application only if the applicant is “payee to Income Tax”. There is no stipulation that if the income shown is assessable to tax, non filing of returns on the crucial date will adversely affect the assessment of marks. Such is not the case here. Therefore, what was required by a person who is not paying tax, is to file an affidavit in Annexure B. That was complied wpc 378/2010 9 with by the petitioner. In Ext.P9 also the petitioner had submitted that such an affidavit was filed along with supporting documents and at the time of field verification all the originals of supporting documents were produced. This fact is not disputed. Evidently, clause 14.1 of Ext.P1 was clearly complied with by the petitioner. In para 9 of Ext.P9 the petitioner clearly submitted that she had never claimed that she or her husband had filed Income Tax returns before the date of application. They were not assessees to Income Tax prior to that also. Therefore, if they had chosen to file returns with penalty, that cannot be taken as a ground to disqualify the petitioner. 16. Learned Standing Counsel for the respondents invited my attention to the column under the sub heading “income” contained in para 14.1 of Ext.P3 brochure which is as follows: “Income (d) Income form all Based on information of application. sources such as Income as per Income Tax Return of salary, property, the last financial year and or affidavit business, agricultural, on income. Maximum Marks 5. interest, royalty, etc. Award 0.1 marks on every unit of per annum Rs.10,000/- or more in multiples of Rs.10,000/- and amounts less than complete unit of Rs.10,000/- will not be considered for award of marks.” It is therefore submitted that copy of Income Tax return ought to have been produced. Herein, evidently what is emphasised is income as per Income wpc 378/2010 10 Tax return or “affidavit”. Production of copies of return is not compulsory. The affidavit alone was necessary, which was produced by the petitioner. If only the applicant is a payee to Income Tax, copy of return need be filed. Here, as that is not the situation, it is not necessary to produce the income tax returns. There is no plea that the income shown is incorrect. 17. In that view of the matter, the reasons stated in Exts.P7, P10 and P15 cannot be supported at all. There is no suppression of any vital documents by the petitioner. It was not a case where the petitioner had provided any “unsupported information” regarding income. The allotment of marks is therefore justified. 18. Therefore, Exts.P7, P10 and P15 are quashed. It is declared that the petitioner being rank No.1 is entitled to get allotment of L.P.G. Distributorship and there will be a direction to the first respondent to allot the L.P.G. distributorship for HPCL at Kuttiadi in Kozhikode District, to the petitioner expeditiously. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/