IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT APPEAL NO : 1754 of 2008 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 18/11/2008 in WP NO : 17065 OF 2008 on the file of the High Court.) Between: M/s. Syam Sunder Indian Oil Service Station Rep. by Proprietor/dealer Smt.D.Nirmala, D.No.5-17-1, Sathenapalli Main Road, Sattenapalli, Guntur District. ..... APPELLANT AND 1 Indian Oil Corporation Ltd., Marketing Division, A.P. State Office, 3-6- 436 to 438, 2nd Floor, Naspur House, Himayathnagar, Hyderabad, Rep. by its Executive Director. 2 Chief Divisional Retail Sales Manager, Divisional Office, Indian Oil Corporation Ltd., at G.V.R. Towers, 3rd Floor, Bharathi Nagar, Ring Road, Vijayawada, Krishna District. .....RESPONDENT(S) Counsel for the Appellant: MR.B.ADINARAYANA RAO Counsel for the Respondents: MR.THOOMSRINIVAS The Court made the following: THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH WRIT APPEAL No.1754 of 2008 ORAL JUDGMENT: (per THE HON’BLE SRI JUSTICE D.S.R.VARMA) Heard both sides. 2. This Writ Appeal is directed against the order, dated 18.11.2008, passed by a learned single Judge of this Court, dismissing the writ petition W.P.No.17065 of 2008, filed under Article 226 of the Constitution of India, seeking to issue a writ of Mandamus, declaring the order vide Ref.VJR/GN/22, dated 30.07.2008, issued by the respondent No.2 therein, as illegal, arbitrary, violative of principles of natural justice and disproportionate and consequently to set aside the same. 3. Appellant is the writ petitioner and the respondents are the respondents, in the writ petition. 4. For the sake of convenience, in this judgment, the appellant and the respondents will be referred to as per their array in the writ petition. 5. The learned single Judge, while dismissing the said writ petition, confirmed the action of the respondents in terminating the dealership of the petitioner, on the ground of non-compliance of the procedure prescribed for collecting the sample. 6. The procedure for loading and unloading of the fuel i.e., petrol or diesel is not in dispute. As per the procedure, the dealer has to collect one sample as and when unloading of fuel from the tanker is effected and preserve it as per the Marketing Discipline Guidelines. 7. The important guidelines, among various other guidelines, are as under: “2.7-SEALING OF SAMPLING CONTAINERS Both the aluminium containers and the wooden box should be properly sealed. Random numbered plastic seals, sealing wire, pliers are to be used for sealing of all sample containers. The above material is to be supplied by the respective oil companies free of cost. 2.8-SAMPLE TAGS Sample tags, as per specimen in Annexure S-2 are to be printed and supplied to the retail outlets in sufficient nos. by respective oil companies free of cost.” 8. From the above, it is supposed that as and when the sample is collected, the sample should be collected and kept in an aluminium container and then it should be sealed and such sealed container should again be kept in a wooden box, which again has to be sealed. Here, the important thing that is to be done is, the seal number attached to the aluminium container and also the number attached to the wooden container should be displayed on the wooden container. 9. In the instant case, the number affixed on the wooden container, which actually is the outer container, was noted and displayed but the number given to the aluminium container, which is inside the wooden container, was not displayed on the exterior of the wooden box. This was found to be a violation of the guidelines, and consequently, the same was treated as ‘no sample’. 10. As already mentioned, collecting sample is essential, which actually is meant for making such samples available for the authorities to check whether there was any alteration or not vis-à-vis the fuel in the underground tank. If there is any variation of quality in the container and the fuel in the underground tank, action will be initiated, in accordance with law, which is not in dispute, according to the learned counsel for the petitioner. 11. But, the specific guideline is that it is imperative for the dealer to collect the sample as and when the petroleum tanker comes to the outlet and unloads the content in the underground tank and seal the said sample, in the manner prescribed as above. 12. Unfortunately, in the instant case, everything was done properly and there is no tampering of seals anywhere, but the only mistake found to be committed by the dealer, the petitioner, is that the number attached to the aluminium container, which is inside the wooden box, was not noted on the exterior of the wooden container. However, the number of the wooden container had been displayed. Furthermore, there was no flaw other than this, which was found to have been committed by the dealer, the petitioner. 13. The authorities found that all other standards of sealing were scrupulously followed and that there was no semblance of tampering of the wooden container, in any manner. When the wooden container was not found to be tampered at all, the question of tampering the inside aluminium container also does not arise. It is rather impracticable and imaginary. 14. But, for any reason, if the authorities arrive at the conclusion that there was a semblance of tampering of the wooden box, in any minutiae manner, the same can be treated as a violation under the head of not making a sample available, which irregularity is attached with a punitive action with a fine of Rs.50,000/-, being the first offence, and when the irregularity is found to be repeated, the penalty of termination of dealership has been prescribed. 15. In the instant case, it is found that the above incident of not noting the number of the inside container on the exterior of the wooden container, amounting to repudiation of guidelines. Therefore, the authorities have resorted to the impugned action of termination of the dealership. 16. As already pointed out, all other formalities have been admittedly found to have been followed and the sample drawn from the underground tank was also found to be unadulterated, and, in such a case, it is again incomprehensible as to how a dealer can afford to keep an adulterated material inside the container and unadulterated material in the underground tank. These two things are absolutely incompatible and ludicrous as well. 17. No doubt, the guidelines have to be scrupulously followed and supervised by the authorities, but such scrutiny has to be performed with rationality and with pragmatic approach. This Court cannot, at any stretch of imagination, find the conclusion arrived at by the respondents as totally illegal and contrary to the guidelines. 18. What all this Court is expecting is, as stated above, such an exercise and conclusions should be done and arrived at with some rationality and reasonableness, for the simple reason that such irrational conclusions jumped at would cause any amount of prejudice to the dealer, which cannot be compensated. 19. For the reasons stated above, while agreeing with the authority of the respondents in issuing the guidelines, we only feel that while implementing such guidelines some amount of rationality has to be followed. 20. If the present controversy is looked at from that angle, this Court cannot arrive at a conclusion that there is violation of the guidelines for the simple reason that sample is very much available and there are no specific instances, under which, in spite of availability of sample, the authorities can say that the dealer is at fault for not making the sample available and certainly, in the present case, for the reasons and for the facts and circumstances, we cannot agree with the conclusion arrived at by the respondents that the petitioner was at fault for not making the sample available. 21. For the aforesaid reasons, we are of the view that the punitive action initiated against the petitioner, which is an extreme action of termination of the very dealership, cannot be sustained. 22. Therefore, the impugned order, as well as the order, passed by the respondents, which was impugned in writ petition, are liable to be set aside. 23. In the result, the Writ Appeal is allowed, setting aside the impugned order, dated 18.11.2008, passed by the learned single Judge, in W.P.No.17065 of 2008, as well as the order Ref.VJR/GN/22, dated 30.07.2008, passed by the respondents, which was impugned in writ petition, are set aside. However, thee shall be no order as to costs. _______________________ JUSTICE D.S.R.VARMA _______________________ JUSTICE G.CHANDRAIAH 17TH FEBRUARY 2009 SKM