IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10740 of 2008 ***** M/S Sabuna Petroleum, N.H.28, Banjari, District-Gopalganj, Bihar, through its proprietor, Murlidhar Pandey son of Dhurandhar Pandey, resident of Banjari, N.H.28, P.S. & District- Gopalganj. …. …. Petitioner Versus 1. M/S Indian Oil Corporation Ltd., Indian Oil Bhawan, G-9, Ali Yawar Jang Marg, Bandra (East), Mumbai-400 051 through its Managing Director. 2. The Executive Director, M/S Indian Oil Corporation Ltd., Indian Oil Bhawan, G-9, Ali Yawar Jang Marg, Bandra (East), Mumbai-400 051. 3. The Divisional Retail Sales Manger, M/s Indian Oil Corporation Limited, Muzaffarpur Divisional Office, Krishna Complex, Akhara Ghat Road, Muzaffarpur – 842 001. 4. M/s S.G.S. India Pvt. Ltd. having its office at Kapoor Niwas, Telephone Exchange Road, Dhanbad-826 001. …. …. Respondents ----------- For the Petitioner : Mr. Ashish Giri, Advocate For the Respondents : Mr. K.D. Chatterjee, Senior Advocate Mr. Anil Kumar Sinha, Advocate Mr. Amlesh Kumar Verma, Advocate ---------- 6. 2.12.2009. Heard counsel for the parties. Petitioner was a dealer of a retail outlet of the respondent M/s Indian Oil Corporation Limited (hereinafter to be referred to as the IOC) whose dealership has been terminated vide order dated 31.3.2008, which is Annexure-12 to the writ application. An appeal filed before the appellate authority challenging Annexure-12 has also been dismissed by the appellate authority vide order dated 4.7.2008 which is Annexure-13 to the writ application. Both the orders, therefore, are under challenge. Initially petitioner was awarded a retail outlet after due selection by the erstwhile IBP Company. The said IBP Company subsequently came to be merged with the M/s Indian Oil Corporation Limited or IOC. Petitioner was dealing with motor spirit, high speed - 2 - diesel and extra premium diesel. To regulate the working of such dealers, Companies have been issuing Marketing Discipline Guidelines which every retail outlet is to follow. This is to ensure that the quality and quantity of the product supplied by the Company and sold to the consumers by retail outlets are maintained. Various inspections and tests are carried out from time to time at the supply point, the tank lorry as well as the retail outlet. The guidelines need not be gone into details at this stage of the order. The guidelines, however, has been brought on record for ready reference as Annexure-2 and 3 to the writ application. In the present case the retail outlet in question was inspected on 9.9.2007. During the said inspection the HSD sample of the retail outlet failed in the marker test. Sales and supplies to the retail outlet were suspended immediately. This was done as per the stipulation of the Marketing Discipline Guidelines (MDG). The tank lorry retention sample (T.T. Sample) was tested in the certified lab in presence of the representative of the dealer on 17.9.2007. The tank lorry retention sample passed the lab test. The sample drawn from retail outlet on the date of inspection, failed. This failure led to issuance of show-cause as to why appropriate action be not taken, which according to the current marketing discipline guidelines means termination of dealership. The show-cause has been brought on record as Annexure-9 to the writ application. The response of the petitioner to the said show cause was that he has yet another T.T. sample which is the tank lorry retention sample, which related to the two immediate past supplies prior to the testing and he - 3 - wanted the said sample to be tested as he was not satisfied with the first test. To put it simply the request of the petitioner to the respondent authorities was that as per the MDG, 2005 guidelines as per Clause 2.3 it I mandated that two T.T. samples (tank lorry samples) of the last two supplies are to be kept at the retail outlet. It implies that adulteration in either of the two last supplies can be checked. Uptill then sample of only the last load prior to the date of inspection i.e. 9.9.2007 has been tested by the companies and not the sample prior to the last supply. A retesting, therefore, was requested before a final reply could be given by him. In absence of any other cogent explanation and with only limited request or objections filed by the petitioner, the company refused to accept the stand of the petitioner. The petitioner was told that there was no requirement for testing of T.T. retention sample of the load prior to the last load, as it was not permissible as per the prevailing guidelines. The consequent for the failure, therefore, was termination in terms of Clause 1 of Appendix-1 of MDG 2005 guidelines. The stand of the petitioner even before the appellate authority was identical. The dealer appeared in person before the appellate authority. He tried to explain the failure but the same was not found satisfactory by the appellate authority and the appellate authority for the reasons indicated and recorded in Annexure-3 upheld the decision of termination of dealership. Submission of the learned counsel for the petitioner is that - 4 - the action of the respondents in terminating the dealership has been taken in breach of the MDG guidelines. No test of the second sample was carried out by the company despite request made. A Bench of this High Court in the decision rendered in the case of Sushil Kumar Singh v. M/s Indian Oil Corporation Ltd. , 2009(4) PLJR 525, has laid down that whenever a procedure is to be adopted for taking a drastic action then a procedure has to be strictly followed. More drastic the consequences the stricter adherence to proper norms is required. The stand of the respondent Corporation in their counter affidavit is that the action taken against the petitioner is strictly in accordance with the marketing discipline guidelines. Retention of T.T. samples prior to the past supply load is one aspect of the matter. There is requirement for a dealer to retain samples of the last two supplies made but the marketing discipline guidelines do not lay down testing of both the samples. Even otherwise the petitioner had made a request to test the second sample prior to the last supplies for which there is no provision in the guidelines. In this regard reliance is placed on Clause 2.5 D of the MDG contained in Annexure-2 which has to be read with Clause 7(a) of the procedure in marker test, which is contained in Annexure-4 to the writ application. Learned counsel for the respondent Corporation relies on enforceability of such guidelines and the powers of the Court to do so under Article 226 of the Constitution of India in the case of J.R. Raghupathy v. State of A.P, A.I.R. 1988 S.C. 1681. Emphasis is on paragraph 18 of the said decision. This decision lays down the ambit of - 5 - the High Court in exercise of power under Article 226 of the Constitution of India in matters of administrative instructions, rules or manuals, which have no statutory force. The counsel has also tried to explain the decision rendered in the case of Sushil Kumar Singh (supra). After referring to paragraph 13 of the said decision the counsel submits that the requirement of testing of three samples in the same lab relates to the samples retained by the retail outlet, a T.T. sample and the supply sample. It does not mean that three samples provided by the retail outlets will have to be retested, if a demand in this regard is made by the dealer. There is absolutely nothing in the guidelines to certify what has been observed by the learned Single Judge in paragraph 13 of the said decision. After going through the procedure laid down in the MDG, the requirement of testing as well as the finding recorded in paragraph 13 of the decision rendered in the case of Sushil Kumar Singh (supra), the Court is in agreement with the submission made at the Bar by learned counsel for the respondents that Sushil Kumar Singh’s case does not lay down the correct law because nowhere the MDG guidelines allows retesting of three samples provided by dealer or retesting of the second last sample prior to the last load. It allows only testing of the last sample prior to the last load. At no point of time the petitioner has demanded or requested retesting of the last sample but has insisted on testing of the second last sample, which is not required to be done. If the respondents have, therefore, not taken cognizance of the request of the petitioner and no other cogent explanation coming from him even now, if the company - 6 - has decided to terminate the dealership, which is required to be done in case of failure of the kind, then the respondents have committed no breach which requires correction or interference by way of a writ application. The stand of the petitioner and his submissions made at the bar is devoid of any merit. The impugned orders have been passed in accordance with the procedure laid down in the MDG and require no interference. The writ application is, therefore, dismissed. Pawan/- (Ajay Kumar Tripathi, J.)