IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1602 of 2006 HIRALAL PRASAD Versus THE UNION OF INDIA & ORS With CWJC No.2150 of 2005 ASHARPHI PRASAD YADAV Versus THE UNION OF INDIA & ORS ----------- For the Petitioner :- Mr. Y.V. Giri, Sr. Adv. Mr. Jyoti Saran, Adv. For the Corporation :- Mr.K.D. Chatterji, Adv. For the Intervenor :- Sri T.K.Jha, Sr. Adv. Sri Anil Kumar Sinha, Adv. 8. 10.7.2008 Heard learned counsel for the parties in both the writ petitions. C.W.J.C. No. 1602 of 2006 has been filed for quashing the letter dated 27.1.2006 issued by respondent no. 4, the Chief LPG Manager, Indian Oil Corporation Limited, Bihar State Office, Patna by which he has cancelled the petitioner’s selection for award of LPG Distributionship for Chapra, District Saran and for further consequential reliefs. The short facts are that an advertisement was published in the Hindi daily Hindustan on 28.8.2000 calling for applications for award of LPG Dealership of Respondent Indian Oil Corporation Limited at Chapra and other places in the open category for which the last date for filing of the application was fixed as 11.10.2000. The petitioner in C.W.J.C. No. 2150 of 2005, namely, Asharphi Prasad Yadav and the petitioner in C.W.J.C. No. 1602 of 2006, namely, Hiralal Prasad along with other persons applied for the said dealership - 2 - and after following the due process the order dated 20.11.2003 was issued by the Dealer Selection Committee in which the candidates were selected in the order mentioned therein. The petitioner Hiralal Prasad was number one candidate in the said panel and the petitioner of the other case and intervenor in the first case, namely, Asharphi Prasad Yadav was number two in the said panel and one Dr Vishwanath Prasad Singh was shown as serial no.3 in the said selection list. Subsequently, it appears that there was a complaint made against the selection of the petitioner and the same was inquired into by the Vigilance Department of the Corporation and on the basis of the said enquiry as well as the investigation report it was found that the allegations against the petitioner were substantiated and by the impugned letter dated 27.1.2005 (Annexure- 13) based on the findings of the investigation and the recommendation of the Vigilance Department, the selection for the distributorship for Chapra, District Saran was cancelled. The grievance of the petitioner Asharphi Prasad Yadav in the other writ petition, as per the law laid down by the Supreme Court in the case of Anil Kumar Singh Vs. The Chairman, Dealers Selection Board, Patna: 2004(1) PLJR (SC) 30, is that after the award of dealership to the petitioner was cancelled then he being no. 2 in the selection list ought to have been awarded the said dealership. In this regard he relies upon Para 6 of the said decision which is quoted below:- “It is, however, pointed out to us that, under the dealers selection manual if the first person in the selection list is found ineligible then the matter - 3 - would be referred by the ED/JM of the concerned oil company to the Chairman of the Dealers Selection Board, who will take a decision on issuance of Letter of Intent to the second empanelled candidate. The Indian Oil Corporation would be at liberty to follow this procedure. However, we add that the normal practice should be that unless and until there is some disqualification of special reason for not doing so an allotment would be made by the Dealers Selection Board to the second empanelled candidate.” Learned counsel for the petitioner Hiralal Prasad submits that the impugned order dated 27.1.2005 has been passed by the authorities without issuing any show cause to him and without supplying copy of Vigilance report. It is submitted that the apparent reason for doing the same appears to be the ground that the income of the family of the petitioner during the relevant period in the financial year starting from 1.4.1999 and ending on 31.3.2000 had exceeded the maximum amount of Rs. Two lakhs stipulated in the advertisement. It is submitted that the allegation was that the petitioner had not disclosed the amount of rent which the wife of the petitioner was receiving from the Punjab National Bank. It is admitted by the petitioner that the said Punjab National Bank which is a tenant in the premises of his wife was depositing an amount of Rs. 5000/- per month in the loan account of his wife with the said bank and since nothing was paid to his wife then under bonafide belief the same was not disclosed. It is pointed out by learned counsel that much prior to the filing of the application for dealership there was a dispute between his wife and the bank regarding enhancement of rent for the period from 14.4.1988. The matter was ultimately compromised before the Debt - 4 - Recovery Tribunal where the bank had filed an application. On the basis of the said compromise on 4.12.2001 arrears for the period from 14.4.1988 to 13.2.2002 was paid amounting to Rs. 9,83,510/-. after deducting tax at sources amounting to Rs. 1,77,660/-. It is contended that even if the said subsequent amount and the entire rental for the financial year 1999-2000 is taken into consideration still the family income of the petitioner comes to less than the Rs. 2,00,000/- stipulated in the advertisement and the petitioner could have shown the same to the Corporation had he been given the proper opportunity by way of filing a reply to a show cause. Learned counsel for the Indian Oil Corporation on the other hand submits that the Corporation has acted on the basis of the information received from the complainant and on the report of the Vigilance Department of the Corporation. It is further submitted by learned counsel that the question of income is very relevant since the entire scheme has been framed in order to help such persons by the grant of LPG dealership who are not very well off and for the said reason the maximum family income of Rs. 2,00,000/- has been stipulated. In this regard learned counsel relies upon a decision of a Division Bench of this Court in the case of Alok Prasad Verma Vs. The Indian Oil Corporation Limited: 2001(1)PLJR 235, in Para 17 of which it has been laid down as follows:- “The facts of the present case has to be judged in the light of well settled law. In terms of advertisement, the retail outlet dealership is to be granted to an unemployed youth graduate whose family has Rs. 15,000/- per annum income. Any attempt to frustrate this object has to be checked by the Corporation. The - 5 - respondent No. 1 obtained the dealership suppressing the fact that he has share in the Cinema business, in the house which situate at mohalla Chhajubag, Patna and also possessed of agriculture land. The appellants having come to know through different sources revoked the letter of intent. The matter came to this Court and this Court set aside the order primarily on the ground that the same was done without observing the principles of natural justice. Thereafter the authorities issued a show cause notice and supplied all the papers which were filed against respondent No. 1 and respondent no. 1 filed a show cause. While the matter was pending, the appellant-Corporation got an inquiry held and the concerned Officer also submitted an inquiry report and that inquiry report has also been relied upon while passing the order adverse to respondent No. 1. This Court as stated above, while quashing the earlier order of revocation directed that all the materials including inquiry report should be supplied before passing final order. Admittedly, that inquiry report was not supplied by the Corporation which has been heavily relied upon by the officers of the Corporation while canceling the Letter of Intent. This non-supply of the aforesaid report amounts to not carrying out the direction given by this Court earlier. This apart, it amounts to following an unfair procedure while dealing with matter as non- supply of the aforesaid inquiry report was not just and fair as the same amount to breach of principles of natural justice. We fully agree with the view taken by the learned Single Judge that the impugned order is vitiated because of non-supply of some of the materials in terms of the earlier direction given by this Court. As stated above, while exercising the power of judicial review, the Court has only to see whether there is any infirmity in decision making process. It cannot decide on merit as an appellate forum. We have found that the appellant-Corporation has erred in decision making process by not supplying a copy of the inquiry report before passing the final order. It is made clear that other relevant documents have been supplied. The impugned order passed by the appellant-Corporation is vitiated on this ground alone. In our view, it was not necessary at all to go into the question on merit - 6 - to find out as to whether respondent No. 1 has income of Rs. 15,000/- or more. This decision has to be taken by the authority and not by this Court in exercise of power of review. In our view, the learned Single Judge should not have decided on merit.” Relying upon the same, it is submitted by learned counsel for the Corporation that the authorities having not supplied copy of the enquiry report, the decision making process may have been vitiated to that extent but the matter should go back to them for taking a decision in the matter as laid down by this Court in the aforesaid case. Further, it is the complaint of learned counsel that when the officer of the Corporation had written to the bank regarding supply of the details of the rental income a reply was received from the bank that they have been directed not to disclose the same to any person. It is submitted that once the petitioner had approached for the LPG dealership then he cannot direct those who pay rent to a member of his family, namely, his wife, not to disclose the rental income paid. On a consideration of the aforesaid facts and circumstances, this Court is in agreement with the contention of learned counsel for the petitioner that the action of the respondent Corporation cannot be upheld as the same is definitely in violation of the principles of natural justice. The authorities of the Corporation having acted on the basis of an investigation report made by their Vigilance Department, they could not take action against the petitioner on the basis of the said Vigilance report without first supplying a copy of the said report to him and seeking his explanation/show cause reply with respect to the same. That having not been done, the impugned order dated - 7 - 27.1.2006 stands vitiated and it is accordingly quashed. However, as rightly contended by learned counsel for the Corporation, the matter must now go back to the authorities of the Corporation to take a fresh decision after complying with the principles of natural justice including supplying of copy of the Investigation Report, on which they purport to rely, to the petitioner and after giving him a proper opportunity of explaining his stand; the petitioner also would be obliged to ensure that the authorities of the bank are not prevented from supplying the details of the rental income paid to the petitioner’s wife in the financial year 1999-2000. C.W.J.C. No. 1602 of 2006 is accordingly allowed with the aforesaid directions. Let the final decision be taken by the authorities of the Indian Oil Corporation within a period of four months from today. As laid down by the apex Court in the case of Anil Kumar Singh (supra), the petitioner Asharphi Prasad Yadav would be entitled to be considered in accordance with the decision therein, in case the authorities decide to cancel the award of distributorship in favour of petitioner Hiralal Prasad. C.W.J.C. No. 2150 of 2005 is accordingly disposed of. P. Kumar (Ramesh Kumar Datta, J.)