Case: Moumita Podder Vs. Indian Oil Corporation Ltd

life of law is not logic but experience. By pointing out the error which according to us crept into the High Courts judgment the legal position is restored and the rule of law has been ensured its pristine glory. Having performed that duty under Article 136, is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty, the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under Article 136. In approaching the matter this way we are not charting a new course but follow the precedents of repute. In Punjab Beverages (P) Ltd., Chandigarh v. Suresh Chand, this Court held that the order of dismissal made by the appellant in that case in contravention of Section 33(2)(b) of the Industrial Disputes Act did not render the order void and inoperative, yet this Court did not set aside the order of the lower court directing payment of wages under Section 33(2)(c) and affirmed that part of the order. While recording this conclusion this Court observed that in exercise of the extraordinary jurisdiction this Court was not bound to set aside every order found not in conformity or in consonance with the law unless the justice of the case so requires. The Court further observed that demands of social justice are paramount while dealing with the industrial disputes and, therefore, even though the lower court was not right in allowing the application of the respondent, the Court declined to exercise its overriding jurisdiction under Article 136 to set aside the order of the Labour Court directing the appellant to pay certain amount to the workers. Following this trend in State of M.P. v. Ram Ratan, this Court while holding that the High Court was in error in directing reinstatement of the respondent in service, took note of the fact that by passage of time the respondent superannuated. The Court paid him back wages till the day of superannuation in the round sum of Rs.10,000. In other words, while formally setting aside the order of the High Court directing reinstatement, treated the respondent in that case in service and paid him back wages because physical reinstatement on account of passage of time was not possible. From the academics point of view the later decision is the subject-matter of adverse comment but we feel reasonably certain that it stems from narrow constricted view of the jurisdiction of the Court under Article 136. We adhere to our view after meticulously examining the learned comment. Having noted that criticism, we still adhere to the view that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end, this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render this Court a normal Court of appeal which it is not." These observations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties. 35. The aforesaid observations were reiterated in the case of Taherakhatoon (supra): "19. We may in this connection also refer to Municipal Board, Pratabgarh v. Mahendra Singh Chawla9 wherein it was observed that in such cases, after declaring the correct legal position, this Court might still say that it would not exercise discretion to decide the case on merits and that it would decide on the basis of equitable considerations in the fact situation of the case and "mould the final order." 36. In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]22. We have considered the submissions made by the learned counsel for the parties. We have also perused the relevant clauses of the policy circular dated 4.9.2003 and the brochure dated 1.11.2004. The public notice dated 19.2.2004 stipulated that the candidate should furnish along with application, details of land, which she may make available for the retail outlet. This condition was certainly fulfilled by respondent No.2. She had given the details of the land. No document was required to be attached. Clause (b) of the important note stated that applicants already having land and willing to transfer the land on ownership/long lease to respondent No.1 would be given preference. It appears to us from the facts noticed above that neither the appellant nor respondent No.2 would have been eligible for any preference. Whilst the appellant had offered the undertakings given by her mother-in-law and father in law to make the land available on lease, respondent No.2 was only in possession of a lease, which contained a negative covenant. Therefore, the candidature of both the appellant as well as respondent No.2 could only be considered under the category that they were prepared to make the site available.Both the appellant as well as respondent No.2 were assessed on the basis of the aforesaid criteria and secured 25 marks each out of a total of 35 marks. From the record, it appears that on the date of the application, respondent No.2 would not fall under the category of land owner. She was, however, a lease holder, but was unable to create a sub lease, in view of the negative covenant contained in Clause 4 of the lease deed dated 18.3.2004. Furthermore in the application, she did not make available any other material to show that she could make the land available. She, however, claims to have produced the supplementary lease deed dated 18.3.2004, at the time of the interview. But there appears to be no material on the record to indicate that it was actually produced before the Interview Board. Even at the time of hearing, no material was produced before us by any of the respondents to show that it was actually produced before the Interview Board. In such circumstances, the learned Single Judge, in our opinion, correctly observed that the lease deed dated 18.3.2004 was perhaps not produced before the Interview Committee.26. We, however, find that the Single Judge has unnecessarily jumped to the conclusion that it was not a genuine document. It had been duly notarized, therefore, it could not be said to be a fake document in the absence of any other material. In our opinion, the Division Bench has correctly accepted the genuineness of the document. Non-registration of lease as required under Section 107 of the Transfer of Property Act, 1882, may affect the legal rights of the parties inter se. But here Respondent No.2 is not seeking to enforce any such rights. She merely offered the lease deed as proof of her "capability to provide land" for being used by Respondent No.1 as a Retail Outlet Dealership. By virtue of Important Note (c) of the Public Notice dated 19.2.2004, respondent No.2 could make the land available within two months of the issue of Letter of Intent, which was issued on 8.7.2004. This, however, will not change the legal position. Even if the second lease deed is genuine, the same was not available before the interview board. No material was placed before this court to show that the document was in fact available at the time when the interview was conducted. Therefore, she could not have been allotted any marks, for her capability to provide land, in view of the negative covenant contained in the lease deed datedthe absence of the lease deed dated 18.3.2004, the Interview Committee had no material before it, to award any marks to respondent No.2, against the column "capability to provideare of the considered opinion, that in the peculiar facts of this case, the learned Single Judge adopted a very pedantic and doctrinaire approach to a problem which in fact, had to be viewed pragmatically. The Learned Single Judge not only failed to take note of the ground realities, but ignored the relevant clauses of the policy circular dated 4th of September, 2003. Under the aforesaid Circular, upon the selection and appointment of respondent No.2 being declared illegal, the entire selection could not have been held to be vitiated. In such circumstances, the Letter of Intent would be issued to the next candidate in the panel of three, in terms of Clause 5.4. This Clause specifically provides that if the letter of intent is cancelled for any reason, it will be given to the next candidate in the merit list. In this case, even such an eventuality would not have arisen, as the candidates at Nos.2 and 3 were not the writ petitioners before the High court. Therefore, in our opinion, the learned Single Judge needlessly set aside the entire selection. At the same time the Division Bench also committed an error of law, in upholding the selection of respondent No.2.31. In view of our findings recorded above, the normal order would be to set aside the impugned judgment of the Division Bench. Further direction would have been to offer the dealership to the next candidate on the panel of three. But these candidates have shown no interest in theseour opinion, the aforesaid judgment was rendered under some very peculiar and exceptional circumstances. It was a case where allotment of retail outlets or petroleum products had been made by a Minister in violation of all norms while exercising his discretionary powers for making the allotments. These allotments had been made in the absence of anyabove observations make it abundantly clear that this Court was dealing with a situation where the concerned Minister had bestowed undue favour on the appellants in that case. Such is not a situation in the present case. Therefore, the aforesaid observations would be of little assistance to the appellant herein.32. The facts and circumstances of this case are not such where this court would be reluctant to come to the aid of a selected candidate, against whom there are no allegations of manipulation or any undue favour having been shown to her. In our opinion, this is not a case of such an exceptional nature where equitable considerations would be impermissible. The peculiar facts of this case are such that it would be appropriate for the Court to take into consideration the subsequent events, in order to do complete justice between theobservations leave no manner of doubt that the court would be failing in its duty if it does not take due notice of the equitable considerations and mould the relief, to do complete justice between the parties.In our opinion, the facts and circumstances of this case are such that the approach adopted by the Division Bench, in taking note of the subsequent events, was appropriate and legally permissible. The clumsy handling of the entire selection process by respondent No.1 ought not to result in disqualification of the respondent No.2 who was perhaps not properly guided. There are no allegations made that respondent No.2 has either manipulated the selection or that any undue favour has been shown to her by the Selection Committee. We also can not ignore the fact that candidates at Nos.2 and 3 of the panel have not challenged the selection and grant of dealership to respondent No.2. The appellant could also not get any relief, not being in the panel of selected candidates. It is also to be noted that the dealership has been operating for more than five years. It is stated to be one of the best, if not the topmost, outlet in the State. Entire infrastructure has been made available with the combined efforts of respondents No.1 and 2. Closure of the dealership, at this juncture, would result in disastrous consequences to respondent No.2. We have already noted that the decision of the Selection Committee is rendered arbitrary due to non-observance of the stipulated criteria in the Policy Circular dated 4.9.2003 and the Public Notice dated 12.2.2004. We have also noted that it is not a case where the selection is vitiated by proved mala fides; nor any allegations of undue favour being shown to respondent No.2 have been made. Even leaving aside the loss which would be incurred by respondent No.2 it would not be possible for this court to ignore the far reaching consequences of cancellation of the retail outlet in the small State of Tripura where such facilities are not in abundance. Therefore, keeping in view the over all public interest, we decline to exercise the extra ordinary jurisdiction of this court under Article 136 of the Constitution of India for setting aside the selection made in favour of respondent No.2.