1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL WRIT No. 953 of 2007 M/S. RATHORE FILLING STATION V/S UNION OF INDIA & ORS. Mr. SP SHARMA, for the appellant / petitioner Mr. ARUN BHANSALI & Mr. VK MATHUR, for the respondent Date of Order : 12.4.2007 HON'BLE SHRI N P GUPTA,J. ORDER ----- Heard learned counsel for the parties. The preliminary objection raised to the effect that in view of clause 68 of Annexure-2, the matter is required to be referred to the arbitration, and therefore, writ need not be entertained. Learned counsel for the respondent placed reliance on a judgment of this Court in S.B.Civil Writ Petition No. 145/2006 Rewashanker Dave Vs. Union of India decided on 20.1.2006. On the other hand, learned counsel for the petitioner relied upon judgment of this Court in M/s. National Highway Filling Station Vs. Indian Oil Corporation reported in 2006(2) Current Diwani Reports-1821, and another judgment in Suresh Tiwari Vs. General Manager I.O.C. reported in RLW 2002(3) Raj.-1797 and submitted that 2 since the petitioner had earlier filed a writ petition in this very matter, wherein this Court had directed respondents to hear the petitioner and decide the matter within two weeks from the date of order by speaking order, and instead of deciding that matter, by the impugned order Annexure-33, the petitioner's dealership has been terminated, while in the previous writ petition the matter was regarding suspension of the dealership, as such in view of the judgment in National Highway's case, the writ petition cannot be dismissed on the basis of preliminary objection. I have considered the submissions, and have gone through the order dt. 9.1.2007 passed in the previous Writ Petition No. 7226 of 2006 available on this record as Annexure-27 so also gone through the three judgments cited on either side. So far as the judgment in Suresh Tiwari's case is concerned that case is altogether a different case, inasmuch as in that case inspection was conducted on 11.9.2001, and the outlet was found in perfect order, but on 14.10.2001 one Assistant Manager(Sales) suddenly appeared at the outlet and demanded money from the attendant, and on his refusal communicated false report, thereafter another inspection was conducted on 15.10.2001, and punishment of closure of retail outlet was imposed on 3 the petitioner. Being aggrieved by the communication dt. 15.10.2001 and 2.11.2001, the writ petition was filed. In that writ petition objection was raised about existence of arbitration clause, and the Court found that, cross F.I.Rs. had been filed with the police station, and that it was also exfacie established that C.B.I. submitted charge-sheet against the said Assistant Manager under Sections 420, 120B I.P.C. and 13(i)(d) of Prevention of Corruption Act, and the said Assistant Manager did not choose to file any counter, controverting the submissions made in the writ petition. Then, after noticing these facts, it was observed that the principles of audi alteram partem does apply in the facts and circumstances of the present case, and finding them to have not been complied, interference was made, observing that arbitration clause is not an efficacious remedy. Suffice it to say that existence of alternative remedy is not absolute bar against maintainability of writ petition, and Hon'ble the Supreme Court has repeatedly held, that in specified circumstances including a circumstance where there is violation of principles of audi alteram partem writ petition can be entertained. In that view of the matter, this judgment cannot be said to be an absolute proposition, that in every case where dealership is cancelled, despite existence of alternative remedy, the writ petition should always be entertained. 4 So far as the National Highway's case is concerned, in that case also the facts were materially different, inasmuch as in that case earlier writ petition was filed, and that was decided on 28.10.2005, and while deciding that writ petition it was held, that the personal antecedents of Krishna Murari, who is not the dealer, cannot be treated to be a substantial reason so as to stop the entire business of the petitioner's Filling Station. However, in the wake of show cause notice to the petitioner, the respondents have every right to examine the matter and, therefore, the petitioner was directed to file reply to the show cause notice, and direction was given to the respondents to complete the process of enquiry against the petitioner within the specified time. Then, it was also directed that if after enquiry if the dealership is sought to be cancelled, the I.O.C. would be under a legal obligation to assign reasons to the petitioner in express terms, so that the petitioner can infer specifically, why the order of cancellation of dealership has been passed. Then, it was further directed, that the writ petition be treated as disposed of with liberty to the petitioner to file a fresh writ petition in case an adverse speaking order is passed against her interest. In this background it was noticed, that in the previous writ petition the objection was not raised, and rather liberty was granted to the petitioner to file fresh writ petition, and the earlier 5 order was not challenged in appeal either, therefore, the objection against maintainability of the writ petition on the ground of existence of arbitration clause was not accepted, by holding, that it cannot be allowed to be agitated again. Then, the writ petition was also considered to be violating fundamental rights of the petitioner under Article 14 and 19(1)(g), and it was also found to be involving violation of principles of natural justice. In the present case, at the outset it may be observed, that in the previous writ petition, the following order was passed:- “Heard learned counsel for the parties. By the impugned action the petitioner's supply has been suspended as there is controversy about negative stock found at the outlet of Ramgarh. The petitioner has his own explanation, while the respondents have their own story to justify their action. As the things stand, I do not feel advised to go into the controversy. The writ petition is, therefore, dismissed summarily. However, it is directed that the non-petitioner shall hear the petitioner, and decide the matter within two weeks from today by speaking order. It is also clarified that if the petitioner feels aggrieved, he will be free to avail remedy as may be available to him under the law. sd/- ( N P GUPTA ),J.” A look at the above order shows, that it was noticed that the petitioner has his own explanation, while the respondents have their own story, to justify their 6 action. With this, this Court did not feel advised to go into the controversy, and the writ petition was dismissed summarily. Obviously, meaning thereby that the matter was left to be decided by the respondents themselves, and in that background the respondents were directed to hear the petitioner, and decide the matter within two weeks from that day of passing of said order. The time frame was given, in view of the fact, that suspension was operating against the petitioner, and his business was standstill, then it was also directed by way of clarification, that if the petitioner feels aggrieved, he will be free to avail remedy as may be available to him under the law. As contra- distinguished from the direction given in National Highway's case, where the liberty was given to file fresh writ petition, while in the present case the petitioner was given liberty to avail remedy as may be available to him under the law, which includes the arbitration clause contained in clause-68. So far the aspect of principles of natural justice is concerned, after the order of this Court dt. 9.1.2007, the petitioner was again given a show cause notice on 15.1.2007, calling him upon to show cause against the faults mentioned therein, and the petitioner did submit his reply Annexure-30, and thereafter after giving opportunity of personal hearing, the impugned order has been passed on 25.1.2007. Thus, prima facie it is not clear as to whether 7 any principles of natural justice have been violated. Much was submitted by the learned counsel on the merits of the order Annexure-33, by contending it to be bad for variety of reasons, but then I do not stand advised to dilate on those submissions, in view of the fact, that the petitioner has alternative remedy of arbitration. The judgment in Rewashanker's case does fully support the respondents. The writ petition is, therefore, dismissed in view of availability of remedy of arbitration. ( N P GUPTA ),J. /Sushil/