W.A. No.778/2011 7.9.2011 We have heard both sides and also examined the impugned order passed by the learned Single Judge. It appears from the prescribed procedure as argued before us that whenever a petroleum product is delivered from the oil company to a dealer of a retail outlet, samples are drawn at the time when it is loaded at the refinery into the tanker for the purpose of transportation and delivery. Thereafter, samples are again drawn at the time when the product is offloaded from the tanker into the retail outlet. The dispute in this case arose when officers of the Indian Oil Corporation made a surprise check on the retail outlet of the appellant and took samples from the dispenser of the retail outlet. The sample which was taken from the dispenser was, as per procedure, divided into three parts. Each part was sealed in an aluminium container, and thereafter kept in a wooden box which was again sealed with a separate seal. One such double sealed part was handed over to the dealer, one part was retained in the Divisional Office of the Corporation and one part of the sample was sent to the Laboratory for testing. The sample so sent to the Laboratory failed in the test. Notice to show cause was given to the appellant. The appellant sought fresh testing or re-testing, for which both samples, i.e., one retained in the Divisional Office of the Corporation and another retained by the Dealer, were again sent for testing and they were tested in presence of the Dealer. The sample which was kept in the Divisional Office of the Corporation again failed the test at the Laboratory. The sample which had been retained by the Dealer was found in the Laboratory to have the outer seal of the wooden box broken, however, the inner seal of the aluminum container was found in proper condition and, 1 therefore, the sample was accepted for testing. On testing the sample was found to be in accordance with the prescribed standard. The Corporation gave a show cause notice to the Dealer and thereafter terminated its retail outlet. We have gone through the notice, a copy of which has been filed as Annexure-P/3 to the paper book of this appeal. On behalf of the Oil Company, it has been argued before us that not only the outer seal of the Dealer’s sample was found broken, but the sample obtained from the Dealer was found to be qualitatively much superior than the sample which was drawn at the Depot when the product was loaded into the tanker for transport and delivery to the dealer. It has been, therefore, argued that the sample which was received from the Dealer, and which has been found to be proper at the Lab, was tampered and substituted inasmuch as it did not contain the same petroleum product which was delivered to the Dealer. It has been argued that there is no other possible explanation, as to how the sample taken from the dispenser could improve over and above that which was delivered to the Dealer by the Company. Attractive as it may sound, the argument overlooks the vital fact that no such thing was mentioned in the second show cause notice. Essentially, the case of the Corporation appears to be that the Corporation is of the opinion that the petroleum product received in the sample from the Dealer was not the same as was handed over to the Dealer at the time of inspection. The reason for this opinion is (i) firstly, the outer seal of the wooden box was broken, and (ii) secondly, and more importantly that sample was better than the product which was originally delivered to the Dealer. In absence of mention of both the aforesaid circumstances for the Corporation’s inference about tampering, we are of the opinion that the Dealer was denied a fair opportunity to submit its defence to the show cause notice. 2 In the circumstances, we set aside the impugned order passed by the learned Single Judge, as well as the order terminating the retail outlet of the appellant. The Corporation is at liberty to give a fresh show cause notice to the Dealer, but it must be done within three weeks from today. The Dealer will have two weeks time thereafter to file its reply supported by copies of such documents as the Dealer may think necessary in support of such defence. The Corporation will consider such defence within two weeks of the date on which reply of the dealer with relevant documents is received and will pass fresh reasoned order. A copy of the order so passed, will be handed over to the Dealer forthwith. But in view of the allegation, and in larger public interest, till a fresh decision is taken as above, the Corporation will not be compelled to allow the appellant to run the retail outlet or to deliver supplies to the dealer. However, till the fresh decision no fresh dealership will be given by the Corporation in place of the appellant for the aforesaid outlet. The writ appeal is allowed to the extent indicated above. Certified copy of this order will be issued, on completion of requisite formalities, by tomorrow. (Sushil Harkauli) (K.K. Trivedi) Acting Chief Justice Judge ac/AK 3