THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION No :21025 of 2005 DATED 29-01-2010 Between: K.Arjuna Rao (DIED) & another. … PETITIONER And The Indian Oil Corporation Limited, Marketing Division, Visakha Divisional Office, Rep., by its Senior Divisional Retail Sales Manager, Visakhapatnam & another. ... RESPONDENTS ORDER: Writ Petition is filed seeking a mandamus declaring the order No.VR/523, dated 16-09-2005 of the Senior Divisional Retail Sales Manager, Indian Oil Corporation Limited, Marketing Division, Visakhapatnam Divisional Office, Visakhapatnam, as illegal and arbitrary. 2. According to the petitioner, he was allotted with the dealership of petroleum outlet of the Indian Oil Corporation at Muktheswaram, East Godavari District. While that being so, a show cause notice, dated 24-08-2005 was issued to the petitioner asking him to explain the allegations made therein which reads as under: “Our Sales Executive (Retail Sales) Shri V.Sreevardhan Reddy visited your Retail outlet at Amalapuram at 16.30 hours on 12th August, 2005 to take a sample of the 2T Supreme loose oil being dispensed at your RO. You were unavailable at the RO and sent your sons Shri Sunil Kumar and Shri Vijaya Kumar to the RO when the Sales Executive requested you to report at the RO for witnessing and signing the LDS sample. However both of them flatly refused to either sign the sample label or issue a bill for the sample product. This was despite the telephonic advise/instructions from the concerned Field Officer, Manager (RS) and Sr.Divisional Retail Sales Manager to sign the sample label. After waiting for you at the RO for almost one and a half hours, the Officer left the RO without completing the sampling procedure due to refusal of your representatives to sign the sample label. Non-cooperation of the dealer due to which the inspecting Officer is unable to carry out inspection/draw samples or refusal of dealer to sign the sample label attracts penal action as per Appendix A of the Marketing Discipline Guidelines, 2005. You may offer your explanation as to why penal action should not be initiated against you for your above misdemeanor in line with the provisions of MDG, 2005. Your reply to this notice should reach us within 7 days of receipt of this letter”. Petitioner submitted his explanation on 11-09-2005 stating as under: “It is a fact that your retail sales Executive Sreevardhana Reddy visited our retail outlet on 12-08-2005. It is also correct at that time, I was not present since I had been to Medical check up in the town since I underwent an heart operation. After coming to know of the visit of Sreevardhana Reddy, I directed my sons to go to the retail outlet and cooperate with Sreevardhana Reddy. I came a little later in the meanwhile, Sreevardhana Reddy already left the retail outlet. My sons Sunil Kumar & Vijaya Kumar reported that Sreevardhana Reddy asked them to sign on some papers. They informed him that they will sign after consulting the Manager, Retail Sales and Senior Divisional Manager. So the said Sreevardhana Reddy phoned to Manager, Retail as well as with Senior Divisional Retail Sales Manager at Visakhapatnam and my son Sunil Kumar talked with them and they consented to follow the advice of both of them. After having telephonic conversation with the above two, my sons asked Sreevardhana Reddy to take the samples in their presence. Sreevardhana Reddy replied that he has already taken the sample and asked them to sign on L.D.S. sample. My sons pleaded the sample labels affixed to the samples which were not taken in the presence of my sons, cannot be signed and samples have to be taken in their presence and labels have to be affixed to the said samples taken in their presence. They also promised to issue a bill if sample purchased is made in their presence”. 3. On receiving the explanation of the petitioner, the respondents passed the following order on 16-09-2005: “Your explanation offered vide your letter, dated 11th September, 2005 for the show- cause notice issued to you vide our letter Ref.VR/523 dated 24th August, 2005 is not found satisfactory for the following reasons:- 1. At no point during the tele-conversation of your sons with the Sales Officer, Manager (RS) or the Sr.Divisional Retail Sales Manager from the RO on 12th August 2005 was the point mentioned that the Lube sample was not drawn in the presence of your representatives. The only argument presented by your sons was that they were not authorized to sign the sample label and that you (the dealer) would come and sign the label. The explanation that the sample was not taken in the presence of your sons and hence they would not sign the same nor issue any receipt for same seems to be an afterthought and put forward to save yourself from the punitive action prescribed as per MDG 2005. 2. It is always the Corporation’s requirement that the Dealer should take personal interest in the RO operation at all times. However, in case the Dealer is unable to attend to the RO due to personal reasons, he should ensure that a suitable responsible person should always be available at the RO to ensure the smooth and safe operation of the Retail Outlet especially since you are handling hazardous products. Even if your argument that the sample was not drawn in your sons’ presence is accepted, there was no reason why the “responsible person” appointed by you to supervise the RO operation should not certify the sampling. In view of above, a fine of Rs.50,000/- is imposed and of sales and supplies of all products are suspended from your Retail Outlet for 45 days in line with the provisions of the Marketing Discipline Guidelines, 2005”. Aggrieved thereby, the present Writ Petition is filed. 4. It is brought to the notice of the Court that during the pendency of the Writ Petition, petitioner died and his legal representative is brought on record. 5. According to the learned counsel for the petitioner, the respondents seem to have visited the petroleum outlet of the petitioner, purported to have taken some samples and waited for one and half hours at the retail outlet to take the signatures of the responsible persons. Thereafter, they left the place and again after the sons of the petitioner came there they insisted them to sign the papers. When they refused and insisted for taking up fresh samples in their presence, the respondents did not do so and insisted them to sign the papers as they have already drawn the samples. 6. After receipt of the show cause notice issued by the respondents, petitioner submitted his explanation on 11-09-2005, as noticed above, stating that he had been to medical check up in the town as he underwent a heart operation and after coming to know about the visit of one Sreevardhana Reddy, he directed his sons to go to the retail outlet and cooperate with the said Sreevardhana Reddy and by the time he came there the said Sreevardhana Reedy left the retail outlet and his sons, Sunil Kumar and Vijay Kumar, reported that Sreevardhana Reddy asked them to sign on some papers and that they informed him that they will sign after consulting the Manager, Retail Sales, and Senior Divisional Manager and only after the samples are drawn in their presence afresh. Of course, the sons of the petitioner refused to sign the samples, which were already drawn, however, the impugned order was passed altogether on a different situation stating that even if the argument of the petitioner to be accepted that the sample was not drawn in the presence of his sons, there was no reason why the responsible persons, appointed by him to supervise the retail outlet, could not certify the sample. This part of the allegation was not part of the show cause notice issued by the respondents and the petitioner had no opportunity of submitting explanation for the same. 7. Be that as it may, the impugned order is passed only on the ground that the sons of the petitioner have not cooperated in signing the samples. In the teeth of the explanation submitted by the petitioner, it is clear that his sons insisted that the samples may be taken in their presence and that only when the samples are taken in their presence they will sign the papers and that the same was not accepted by the respondents. 8. Learned counsel for the respondents states that during the pendency of the Writ Petition, in another inspection, the licence of the petitioner was suspended and he is not conducing the business as of today. 9. Under those circumstances and for the reasons stated above, I am of the opinion that the impugned order passed by the respondents is arbitrary, illegal and violative of the principles of natural justice and on that ground alone, the impugned order is liable to be set aside and is accordingly set aside. 10. Accordingly, Writ Petition is allowed. There shall be no order as to costs. ________________ C.V.RAMULU,J 29th January, 2010. Tsy