IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WA.No. 1572 of 2011() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.13237/2011 Dated 25/07/2011 .................... APPELLANT(S): PETITIONER ---------------------------------------- NIMESH M.K., S/O.KANNAN, AGED 35 YEARS, RESIDING AT MANAKKALKAROTT HOUSE, AMBALAMEDU, CLINT ROAD, ERNAKULAM-682303. BY ADV. SRI.C.K.PAVITHRAN SRI.M.VIVEK RESPONDENT(S): ------------------------ 1. THE CHIEF OPERATIONS MANAGER, INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR P.O., KOCHI-682036. 2. THE CHIEF TERMINAL MANAGER, COCHIN TERMINAL, INDIAN OIL CORPORATION LTD., IRUMPANAM, KOCHI-682309. BY ADV.E.K.NANDAKUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & C.N.RAMACHANDRAN NAIR, J. ---------------------------------------------- W.A.No. 1572 of 2011 ---------------------------------------------- Dated this the 9th day of November, 2011 JUDGMENT Manjula Chellur, Ag.C.J. This appeal is directed against the judgment of the learned Single Judge in W.P(C).No. 13237 of 2011. The admitted facts are that the appellant entered into an agreement for transporting goods of the respondent-Corporation and the allegation against the appellant is that one of the five trucks belonging to the appellant bearing registration No.KL-17/C-4145 was used to carry phenol other than the petroleum products of the respondent- Corporation. Therefore, there is breach of terms of contract between the appellant and the respondent-Corporation. After an enquiry, the respondent-Corporation cancelled the contract and all the five trucks were blacklisted as per Exhibit P4 letter dated 25.4.2011. Aggrieved by this, he approached the learned Single Judge contending that similarly placed contractors were given concession by the respondent-Corporation and there is discrimination against him by the respondent-Corporation. WA.1572/11 2 2. We heard learned counsel for the appellant as well as the learned counsel representing the respondents. 3. It was brought to our notice by the respondent- Corporation that similarly placed contractors by name Mr.Varghese and M/s.Shajan in a slightly different situation were also dealt in accordance with the procedure contemplated and according to the learned counsel for the respondent-Corporation, Mr.Varghese is also blacklisted. So far as M/s.Shajan is concerned, one of the tank trucks is blacklisted. According to the learned counsel for the respondent-Corporation, it is not just misusing or deviating the user of the tank truck by the appellant, but he did not report the availability of the tank trucks as required in terms of the contract on two occasions between 14.1.2011 to 21.1.2011 and 14.2.2011 to 28.2.2011. 4. The appellant's counsel fairly admits deviation of user of one of the tank trucks for transporting phenol. He also admits that during the above two occasions, they have not reported as alleged by the respondent-Corporation. If pilferage was committed, then the innocence of the appellant could be presumed, because he would not have the knowledge what the driver would be doing while transporting the products of the WA.1572/11 3 respondent-Corporation. Here, the user or non-user of the vehicles would be very much within the knowledge of the appellant contractor. Therefore, he cannot plead innocence by contending that he was totally ignorant of the acts of his employee, i.e., the driver of the tank truck concerned. In that view of the matter, we are of the opinion that the respondent-Corporation was justified in blacklisting the vehicles belonging to the appellant as there is not only deviation of the user of the tank truck, but also violation of other conditions by not reporting to the Corporation authorities on the above two occasions. Accordingly, we are of the opinion that the appeal does not survive for consideration and hence, the same is dismissed. MANJULA CHELLUR, ACTING CHIEF JUSTICE C.N.RAMACHANDRAN NAIR, JUDGE vgs