IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WA.No.150 of 2008 -------------------------------------- AGAINST THE JUDGMENT IN WPC 20051/2007 Dated 3-8-2007 .............. APPELLANTS: PETITIONERS 1 TO 3 AND 5 IN WPC:- ------------------------------------------------------------------------ 1. LUKE THOMAS, AGED 51 YEARS, S/O. M.U.THOMAS, MATTATHILPARAMBIL, KOLATHILPADY, VADAVATHOOR P.O., KOTTAYAM. 2. JOHNY THOMAS, AGED 47 YEARS, S/O. THOMAS, VELLAPPANIYIL, KOORALI P.O., ELAMGULAM, PONKUNNAM. 3. P.A.SHANAVAS, AGED 40 YEARS, S/O. P.ABDUL RASAK, NADACKAL HOUSE, VENGALLUR P.O., THODUPUZHA. 4. ZACHARIAH ABRAHAM, S/O. K.S.ABRAHAM, AGED 63 YEARS, K.S.ABRAHAM & COMPANY, INDIAN OIL DEALERS, PAZHAVANGADI P.O., RANNI. BY ADV. SRI.V.R.VENKATAKRISHNAN (SR.) RESPONDENTS: RESPONDENTS:- ----------------------------------------------- 1. INDIAN OIL CORPORATION, REPRESENTED BY SENIOR OPERATIONS MANAGER, KERALA STATE OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-682 036. W.A.No.150/08 -2- 2. THE CHAIRMAN, INDIAN OIL CORPORATION LTD., NEW DELHI. 3. THE GENERAL MANAGER, INDIAN OIL CORPORATION LTD., INDIAN OIL BHAVAN, G-9, ALI YAVAR JUNG MARG, BANDRA (E), MUMBAI-51. 4. THE DEPUTY GENERAL MANAGER, INDIAN OIL CORPORATION LTD., PANAMPALLY NAGAR, ERNAKULAM. 5. THE SENIOR OPERATIONS MANAGER, INDIAN OIL CORPORATION LTD., KERALA STATE OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-682 036. 6. THE SENIOR DIVISIONAL MANAGER, INDIAN OIL CORPORATION LTD., KERALA STATE OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-682 036. 7. UNION OF INDIA, REPRESENTED BY MINISTRY OF PETROLEUM, NEW DELHI. R1 TO R6 BY ADV.SRI.A.K.JAYASANKAR NAMBIAR. R7 BY SRI.P.PARAMESWARAN NAIR, ASSISTANT SOLICITOR GENERAL. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/02/2008, ALONG WITH WA.175/2008, WA.177/2008 & WA.196/2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------------------ W.A.Nos.150/2008-E, 175/2008 177/2008 & 196/2008-E ------------------------------------------------------- Dated, this the 5th day of February, 2008 JUDGMENT K.M.Joseph, J. These four appeals are filed against the common judgment of the learned Single Judge. The appellants are dealers of petroleum products of the first respondent Indian Oil Corporation Ltd. They are aggrieved by their exclusion from consideration for award of transporting contracts for transportation of petroleum products to the retail outlets of the first respondent Corporation. They were excluded on the ground that they did not submit tenders before the due date for acceptance ie. on 14-3-2007. They questioned the exclusion. The learned Single Judge found that the case of the appellants that they have submitted tenders within the due date did not inspire the confidence of the Court and the writ petitions came to be rejected. Being aggrieved by that order, the writ petitioners have filed these writ appeals. (2). We heard Sri. V.R.Venkatakrishnan, learned senior counsel appearing for the appellants as also the learned counsel on behalf of the Corporation. It is not in dispute that the Corporation has fixed 14-3-2007 as the last date for submission of tenders. The specific case set up by the appellants in the writ petition was that the tenders were entrusted to one Rajesh Mathew who had handed over the same to the Senior Operations W.A.150,175,177 &196/08 -2- Manager of the Corporation. Three reasons have been stated by the learned Single Judge in coming to the conclusion that the case set up by the appellants/petitioners cannot be believed. In the first place, the case set up by the petitioners in the representation was that the tenders were submitted before 14-3-2007. Later on there was variance in their case with regard to the date of submission of tenders in so far as it was their case that tenders were submitted on 14-3-2007. Further, the gate register was pressed into service to show that one Rajesh had gone to the office of the Ist respondent on 14-3-2007. Going by the entries in the gate register, it is clear that he had gone to meet one Assistant Manager. In other words, from the gate register it appears that he had not met the Senior Operations Manager. The learned Single Judge found that it did not inspire the confidence of the Court to suggest when Rajesh Mathew was allegedly gone on 14-3-2007 with an important task of entrusting tenders to the Senior Operations Manager, the name of the Senior Operations Manager was not mentioned in the gate register and it is name of the Assistant Manager which is shown in the gate register. Learned Judge also took note of the fact that the case of the petitioners was that tenders were entrusted to one Rajesh Mathew, but in the gate register the name shown is Rajesh. The learned single Judge also was inclined to take the view that there is some substance in the version of the Corporation that the appellants/petitioners were trying to form themselves into a cartel so as to hike the tender price as high as possible as they did not respond to the earlier invitation of tenders for lesser amounts. W.A.150,175,177 &196/08 -3- (3). We directed the Assistant Manager mentioned in the gate register to file an affidavit. The Assistant Manager has filed an affidavit, wherein he has stated as follows: “ I, C.S.P.Kutty , aged 54, S/o.late M.V.Sankaran Nair, residing at Calicut do hereby solemnly affirm and state as follows: 1. I am the Asst.Manager (Finance), Indane Bottling Plant of the Indian Oil Corporation at Chelari, Calicut. 2. I was the Asst.Manager (Finance) at the Cochin Divisional Office of the Indian Oil Corporation Ltd as on 14-03-2007. It is submitted that the office of the Indian Oil Corporation at Panampilly Nagar houses both the Kerala State Office as well as the Cochin Division Office. So far as the duties of the Asst. Manager (Finance) at the Cochin Divisional Office are concerned, the same involves all vendor payments, dealer payments, employee payments, release of subsidy to dealers, corpus fund and land rental to land owners. It is submitted that receipt of tender documents or acceptance letters do not form part of the official duties of the Assistant Manager (Finance) of the Cochin Divisional Office. 3. It is submitted that the Cochin Divisional Office is not involved in the finalisation of tenders for Bulk Transportation of Petroleum products or any other tenders and the same is done exclusively by the Kerala State Office, more particularly by the Operations Department which was headed by the then Senior Operations Manager, Shri J. Manoj Kumar, who was subsequently promoted as Chief Operations Manager. 4. As regards the contention in the writ petition that suggests that one Shri.Rajesh Mathew had visited the office of the corporation on 14-03-2007 and handed over the tender documents to me, it is submitted that it is not part of my official duties to accept tender documents and no tender documents or acceptance letters were either handed over to W.A.150,175,177 &196/08 -4- me by or received by me from the said Shri Rajesh Mathew or by any other person, on 14-03-2007, as a matter of fact there are many persons including dealers who come to meet me in connection with finance matters pertaining to dealerships which I handle and at this distance of time, I cannot say whether among the persons who came to my office on 14-03-2007, there was a person by name Rajesh also. 5. This affidavit is filed in compliance with the direction of this Hon'ble Court dated 31-1-2008. All facts stated above are true to the best of my knowledge, information and belief.” (4). The learned Senior counsel appearing on behalf of the appellants would contend that having regard to the questions which have been raised for consideration and decision before the learned Single Judge, the approach of the learned Judge was erroneous. He would submit that, having regard to the fact that the appellants were actually running petroleum outlets, they were highly desirous of being awarded with transporting contracts and the case set up by the Corporation that they did not submit the tenders within the time was incredible. He would further submit that, the finding of the learned Judge that it is the name of one Rajesh which is shown in the gate register and the name of Rajesh Mathew does not figure in the gate register cannot be pressed into service for deciding this issue. He would submit that in a matter of this nature, what has happened is that though the tenders were submitted, there was no acknowledgment or receipt given. In the absence of receipt or acknowledgment, the appellants are disabled W.A.150,175,177 &196/08 -5- from showing that the tenders were in fact submitted, it is submitted. (5). In deciding these appeals we have to first remind ourselves of the nature of proceedings under Article 226 of the Constitution of India. Proceedings under Article 226 are supervisory in nature and not appellate in nature. The issue that fell for consideration before the learned Judge was on the basis of the stand taken by the appellants on the one hand that they had submitted tenders before the last date and the stand taken by the Corporation on the other hand that tenders were not submitted. This issue is purely a question of fact. It is settled law that the burden of proving the case in a writ petition as in a civil suit, lies on the writ petitioner. The question as to whether the said onus has been discharged is essentially the question we would have to consider in these appeals. We would think that the reasons stated by the learned Judge are weighty reasons to non-suit the appellants. The reliefs sought for by the appellants are themselves dependent on the answer to the question as to whether the appellants had submitted tenders within the time. Even assuming for a moment that we need not be detained much by the fact that the name of Rajesh Mathew as such does not figure in the gate register, we would think that the other two reasons which are stated by the learned Single Judge are substantial in nature. They are, the case set up by the appellants in the representation was that they had submitted tenders before 14-3-2007. However, the gate register would bring out the fact that the person to whom they had entrusted the tenders allegedly had gone only on 14-3-2007. This Rajesh had gone on W.A.150,175,177 &196/08 -6- 14-3-2007 to meet not the Senior Operations Manager but the Assistant Manager. This cuts at the root of the appellants' case that Rajesh had entrusted the tenders to the Senior Operations Manager. In the affidavit filed by the Assistant Manager whom Rajesh Mathew allegedly met on 14-3-2007 he has stated that he has nothing to do with the acceptance of tenders. We would think that at any rate no appeal lies unless the view taken by the learned Single Judge is so erroneous that no other view is possible. We are of the firm view that the view taken by the learned Single Judge is a plausible view. We find no merit in the appeals. Accordingly, the appeals are dismissed. (6). Consequently, I.A.No.139/2008 in W.A.No.175/2008 is dismissed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE MS