Civil Writ Petition No. 9087 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 9087 of 2009 (O&M) Date of decision: April 27, 2011 Harbans Kaur .....Petitioner VERSUS Indian Oil Corporation & another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Arun Jain, Senior Advocate, with Mr. Jatin Salwan, Advocate, for the petitioner. Mr. Ashish Kapoor, Advocate, for the respondents. Mr. Gaurav Mohunta, Advocate, for the applicants. **** RANJIT SINGH, J. A reward well earned by Gurdev Singh Grewal, an ex-serviceman, on account of his participation in two wars fought by country, has been nullified to an extent by his daughter and by the Indian Oil Corporation. For his sacrifice and injuries suffered during wars, Gurdev Singh Grewal was allotted a kerosene depot in Sector 22, Chandigarh. He is no more in this world and his old wife is dependent on this depot for her livelihood. Late Gurdev Singh had Civil Writ Petition No. 9087 of 2009 -2- suffered war injuries and so too an extent was not fully capacitated to run the depot efficiently. He happened to commit a folly in making his two daughters join as partners. One of the daughter is now a cause of trouble for her old and infirm mother. The respondent- Corporation appears to have grabbed the opening given to them by one daughter-partner for moving for cancellation of the depot now being run by the wife of ex-serviceman. The estranged daughter has complained against her own mother. Except for some economic gain, nothing else seems to be her motive. Thus, the well earned allotment is under threat of being taken away and with this would go the livelihood of the wife of a soldier who fought well for our country. It is in recognition of the services rendered by Gurdev Singh Grewal that the respondent-Indian Oil Corporation allotted him kerosene dealership on 18.11.1973 in the category of War sufferers. This dealership is being run under the name and style of M/s Gurdev Trading Company. It is stated in the writ petition that on account of his incapacity, late Gurdev Singh could not run the kerosene dealership efficiently and thus, had decided to induct his two daughters namely Tejpal Kaur and Jagdish Kaur as partners. This partnership deed was drawn on 5.11.1986. The respondents endorsed their consent to this arrangement. Unfortunately, Gurdev Singh breathed his last on 8.8.1993. The petitioner being the LR, therefore, took upon herself to manage the affairs of the dealership concern. The new agreement was also entered into between her and her two daughters, after due approval by the respondent-Corporation. Suddenly, however, respondent No.2 had Civil Writ Petition No. 9087 of 2009 -3- suspended the sales and supplies of the dealership on 4.5.2009. A show cause notice was also issued to the petitioner and copy of it is annexed with the writ petition as Annexure P-5. The petitioner made a written request with the respondents to restore the supply. When nothing was done, she has filed the present writ petition. A perusal of show cause notice would show that one of the daughter of the petitioner, who is also a partner, had requested for cancellation of the dealership on the ground that the other two partners i.e. the petitioner and her second daughter are selling kerosene oil in open market at higher price. A meeting was held on 27.4.2009 at the office of the Corporation, where the partners came present. During this meeting, Jagdish Kaur one of the partner admitted that she was working as Accountant with Central State Library in Sector 17, Chandigarh. She further disclosed that her sister and the second partner, Tejpal Kaur had been working during the period from 1983 to 2008 with Chandigarh Administration. She even went to the exent of stating that for the last two years she is not able to devote much time to agency and that supplies were being made without ration cards. Making this complaint the base, show cause notice was issued to the petitioner asking her to explain within 7 days as to why the dealership should not be terminated in view of what had surfaced. The petitioner has, accordingly, challenged the show cause notice through the present writ petition. Grievance of the petitioner is that the action has been taken without verifying the contents of the complaint. The grievance seems to be justified as complainant was one of the partners, who would normally complain Civil Writ Petition No. 9087 of 2009 -4- because of some extraneous reasons. She herself could have very well stopped any wrong at the depot. While issuing notice of motion, this Court stayed the operation of both the orders dated 4.5.2009 i.e. Annexures P-4 & P- 5. The interim order was passed in the presence of the counsel for the Corporation. The writ petition was admitted on 10.8.2009 and was ordered to be listed for hearing within 3 months. Interim order was directed to continue. The petitioner had then filed a Civil Miscellaneous application No.17941 of 2009 before this court seeking direction for striking of the defence of the respondents when they had failed to comply with the interim direction for restoring the supply to the petitioner. Notice of this application was issued. When the case came up for hearing before this court on 17.1.2011, this Court observed as under:- “This appears to be a trouble created for the petitioner, Harbans Kaur, by her own daughters. Gurdev Singh, husband of the petitioner, is no more. He was allowed a kerosene oil dealership. On the death of husband of the petitioner, she associated her tow daughters as partners and arrangement was made for running this depot by partnership concern. Now daughters have come forward to make a complaint against the petitioner. The daughters are rather seen to be acting in an unfair manner. Basically, they are not only seen to be serving but apparently are married and have their source of income. The dependency of the widow on this depot is for her survival. Accordingly, the interest of justice would require, making some Civil Writ Petition No. 9087 of 2009 -5- arrangement for this widow, ignoring the cries of these daughters, who are totally unfair to their old mother. Till further orders, petitioner, Harbans Kaur, alone would run this kerosene depot and she alone would be responsible. This arrangement is subject to final outcome of the writ petition. Mr. Kapoor will have instructions as to how the modalities can be worked out for giving this depot in the name of widow alone. Mr. Kapoor would also have instructions if the respondents would restore supply as it is meant for survival of the petitioner. Adjourned to 28.1.2011.” The attitude on the part of daughter would emerge from her conduct. Daughter-partner (Jagdish Kaur) chose to file LPA against this order. To her good luck, LPA was dismissed. This Court was justified in expressing its anguish at this highly ungrateful conduct of one of the daughter, who was inducted as partner by her father and was creating trouble for her mother. It was noticed that the petitioner had this depot being wife of an ex-serviceman, which was a reward for his services rendered for the Nation. Court noticed the unwise move on part of father to join the daughters as partners. Mr. Mohunta, appearing for this trouble creator daughter had ensured that she will not create any problem henceforth. This Court considered it appropriate to issue directions for commencing the supply to the kerosene depot. The respondent-Corporation has been defiant and had discontinued the supply despite stay granted by this Court. The Court also directed that that a share of the Civil Writ Petition No. 9087 of 2009 -6- complaining daughter be deposited in the Bank account, which shall not be disbursed to her till further order. The case was adjourned for working out modalities to find a permanent solution to the woes of this widow of an ex-serviceman. Even this order passed by this Court was taken in LPA, this time by the Corporation. The LPA Bench has stayed the operation of the order dated 4.2.2011. Thereafter, on 5.4.2011, the LPA Bench has passed the order for Single Bench to decide the matter on 18.4.2011 when the case was coming up for hearing. Indeed the case was kept for decision. The order is as under:- “List on 12.5.2011. We are informed that the main writ petition is fixed for consideration before the learned Single Judge on 18.4.2011. We would request the learned Single Judge to consider and decide the matter on the next date fixed if the business of the Court so permits.” The writ petition has, thus, been taken up for hearing and decision. In the reply filed on behalf of the Corporation, the very maintainability of the petition is questioned on the ground that the petitioner has an alternative remedy of seeking arbitration as per Clause 63-A of the Kerosene Outlet Dealership Agreement. The said clause has also been reproduced, which is as under:- “63(a). All disputes or difference of any nature whatsoever any claim cross-claim, counter claim or set off or regarding any right, liability, act, omission or account of any of the parties hereto arising out or in relation to this agreement shall be referred to the Civil Writ Petition No. 9087 of 2009 -7- sole arbitration of the Director (Marketing) of the Corporation. XXXXXXXXXXXXX.” Reference is made to large number of precedents to plead that where Arbitration clause is available, the court is under obligation to direct the parties to go in for the Arbitration. Reference in this regard is also made to Munish Gupta Versus Union of India, 2009 (1) RCR 365. Reference is made to para 11 of the judgment, whereby it is observed that the grant of distributorship is a commercial transaction, for which the petitioners are paid commission charges. Such transaction does not involve any public function. It is observed that since such transaction does not involve any public function, it may not entitle the petitioner to invoke the writ jurisdiction of this Court. Accordingly, the prayer is made for dismissing the writ petition and for giving liberty to the petitioner to invoke the alternative remedy of seeking Arbitration. To be fair to Mr. Kapoor, he has placed before me number of judgments like Hindustan Petroleum Corporation Ltd Versus Pinkcity Midway Petroleums, AIR 2003, SC 2881, M/s Regent Automobiles Versus Indian Oil Corporation Limited and others, 2008(3) RCR (Civil) 752, unreported judgment in the case of Vipin Kumar Kamboj Versus Union of India and others, (CWP No.3969 of 2008), decided on 14.3.2008 and, unreported judgment in Vivek Bajaj verus Indian Oil Corporation Ltd. and others (CWP No.1634 of 2010), decided on 13.1.2011. Mr. Arun Jain, learned Senior counsel appearing for the petitioner would highlight the peculiar facts of this case and point Civil Writ Petition No. 9087 of 2009 -8- out that the respondents have taken action to discontinue the supply, primarily on the basis of a complaint filed by of one of the partner, who was none other than the daughter of the petitioner. The show cause notice for cancellation had then been issued on this count only. It is stated that the respondent-Corporation has taken action against the petitioner without verification of the allegations made in the complaint. The complaining daughter and who is cause of this trouble has moved an application for being impleaded as party respondent. Though not impleaded but Mr. Gaurav Mohunta, Advocate, representing her, has been heard and is allowed to make submissions. During the course of hearing, the parties were also summoned by this Court and it was impressed upon this daughter to behave and not to create trouble for her mother. The complaining daughter Jagdish Kaur came present and ensured the Court that she will not create any more problem for her mother-petitioner. One is bound to take notice of the fact that both the daughters are married and have their respective individual means of livelihood. On the other hand, this old lady and wife of a soldier who fought for Nation is dependent on this agency for her very survival. The daughter can afford to loose this agency and still survive, but it will be a case of everything lost for this old and infirm lady. This is not an ordinary or routine case of contesting partners. It is a case of helpless and hapless widow, who is struggling to save her mean of survival. The extraordinary situation would call for extraordinary measure. The Civil Writ Petition No. 9087 of 2009 -9- reach of this Court under Article 226 is wide enough to correct injustice where ever it may be. A writ Court has wide sweep to do justice. This old lady, a wife of soldier, injured in War, has been appearing in this Court on almost all the dates of hearing. On some of the dates, she was able to pour her feelings in person. She bitterly complained against this complaining daughter. The allegation that the supply of the kerosene from the depot was not being made properly or was being misused too, may have to be considered with concern. If these allegations are true, then obviously the right of the respondent-Corporation to act in accordance with law should not be curtailed. Apparently, I find that the respondent-Corporation primarily has acted on unauthenticated complaint made by one of the partner, without carrying out any independent verification of the allegations made. It would have been appropriate for the Corporation to act in this case, only after ascertaining the correctness of the allegations by some sort of independent investigation and should have taken action thereafter. Even in the show cause notice (Annexure P-5), the main ground advanced to stop the supply and also to seek an explanation for cancellation of the agency is that partner inducted in the partnership are/were in service/Government service and thus, the dealership agreement was/is violated. This fact was also revealed by Jagdish Kaur-the complainant-daughter when she was summoned and appeared before the respondent-Corporation. She appears to have disclosed that not only she was in the employment but second sister had also been employed from 1983 to 2008. Civil Writ Petition No. 9087 of 2009 -10- The counsel for the respondent-Corporation would cash on to this technicality to urge that this ground is enough to cancel the dealership as the petitioner has mislead the Corporation by inducting partners who were in the Government service and this is in violation of the agreement entered into between the parties. Technically the counsel is right and is justified in pressing hard for cancellation of the dealership. Viewed with a bit of compassion and in the background that this dealership was allotted as a reward to soldier, a case may be made out for some what different approach then the normal consequence that would have been made to follow. It may also need a notice that late Gurdev Singh had inducted his daughters as partners. The petitioner, after death of her husband, has only allowed this arrangement to continue. Late soldier statedly had inducted his daughters as partners when he found it bit difficult to run the depot efficiently because of his handicap. This arrangement was approved by the respondent-Corporation. Perhaps, the late soldier was not well versed with the clauses of agreement. He cannot be attributed with any oblique or other motive for joining in his daughters as partner. Had he been smart, he could have easily taken help from his daughters instead of making them join as partner if he had known that it would lead to cancellation of depot being in violation of the agreement. It is not a case where he has joined any stranger for any gain that any allegation of any wrong could be made against him. This arrangement has worked well even since his death. The petitioner has only continued with the same arrangement that too after due approval of the Corporation. Civil Writ Petition No. 9087 of 2009 -11- Incidentally, both the daughters are now no more in service and thus, the objection on this ground would be no more valid. Any action against the petitioner on this count would mean that the petitioner would suffer for something, which her late husband did, which seems to have been done in all innocence. One cannot really complain against the Corporation to take action on this ground once this has come to its notice. The peculiar facts in this case, however, may need some consideration which apparently is being missed by the Corporation. It is not so observed to find fault with the action, but only to highlight that this is not a normal routine rut of a case. This case may require some special treatment without finding any fault on the part of the Corporation to act in this manner by issuing the show cause notice. One way of looking at the problem is the technical approach which may show some violation on the part of the petitioner. Seen from the another angle of the sacrifice made by late husband of the petitioner, the case may assume some different dimension for showing compassion. Can the petitioner be made to suffer for something what her late husband did perhaps with all innocence? It can well be appreciated that late husband of the petitioner would have no reason to induct his daughters as partner except that he needed some help to run the depot. Agency was allotted to him alone. Had he inducted any stranger to be his partner then some motive could be attributed to him. This action on the part of late soldier was in all innocence and only to get help to run the depot efficiently. Had he known that this was not permissible, he Civil Writ Petition No. 9087 of 2009 -12- could have easily asked his daughters to lend a helping hand instead of joining them as partner, which is a cause of trouble now. Only fools would choose to do so knowingly. This should not lead to such serious repercussion for the petitioner who is not really responsible for this mess. Late Gurdev Singh Grewal was well within his rights to run this distributorship alone. It is because of his handicap suffered in war for which he had to undertake this exercise in joining his daughters as partners. Should the petitioner be made to suffer for the mistake her husband happened to commit unknowingly with all innocence? Should we all forget the sacrifice he made for which he was rewarded with this dealership? In my view, the petitioner’s sacrifice for which this distributorship was allotted to him, would out- weigh his innocent folly. The objection about the partnership, if any, can be sorted out by issuing direction to end this and to allow the petitioner to run the depot alone. Since both the daughters are now not employed, they can be continued as per the discretion of the petitioner in case she needs their help to run the depot. The petitioner would be at liberty to join even one daughter, who is found to be helping the mother. The respondent-Corporation can certainly show some consideration to this widow; if need be, the petitioner can be asked to make a fresh application with the Indian Oil Corporation for continuing this dealership solely in her name or in partnership with her daughter/daughters. This application would deserve to be considered with sympathy. The Corporation can incorporate all the terms& conditions to safeguard the running of the depot in a proper legal manner. Civil Writ Petition No. 9087 of 2009 -13- The petitioner must understand that she is required to ensure that the depot is run efficiently and any complaint of any wrong can lead to cancellation. To ensure this, it would be appropriate to make it clear that the Corporation would be at liberty to take action if it is noticed that any wrong is still being done in running the depot. It may need to be observed that the Corporation was fully justified in initiating the action. It is only certain special feature that has come to the rescue of the petitioner. The corporation seems to have acted in haste without verifying the allegations. Perhaps the defect in partnership was considered enough to issue cancellation notice. There is substance in the submission made by Mr. Kapoor that the petitioner has alternative efficacious remedy of seeking Arbitration. The case law cited by Mr. Kapoor supports his submissions in this regard. Discretion to entertain writ when there is an alternative remedy available is to an extent with writ Court. It is a self imposed restriction. The facts in this case would be such that, I am not inclined to relegate the petitioner to seek alternative remedy of Arbitration. It is only at the show cause stage and that this Court has interfered and stayed the operation thereof. So far no precipitate action has been taken to cancel the dealership, which could give rise to a real dispute. The dispute at this stage is inchoate and has not taken a shape of dispute, which could be sent for Arbitration. Equally tangible is the plea of Mr. Kapoor that writ petition is filed against a show cause notice and so cannot be entertained at this stage. This Court had already entertained the writ Civil Writ Petition No. 9087 of 2009 -14- petition and had protected the petitioner by passing an interim order. The writ petition has been admitted after hearing the counsel and the objection also. It will not be appropriate at this stage to dislodge the petitioner on the ground that the writ petition is against only a show cause notice or there is an alternative remedy available. In fact, apart from show cause notice, supply to the depot has also been discontinued which is a cause enough to entertain the writ petition. The writ petition is allowed. The impugned show cause notice is set aside. The respondents are directed to reconsider the entire issue for which the petitioner would make an application either to run the depot alone or with the partnership with her daughter/daughters. The petitioner would, however, give an undertaking that she will ensure that the distributorship would not be misused in any manner and she would ensure efficient running of the distributorship. The petitioner can submit an application within one week. It is expected from the respondents to take action on the application preferably within one month. April 27, 2011 (RANJIT SINGH) monika JUDGE