9911796707
TMI Blog2024 (6) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, if any. Thus, the submission of the respondents that R.M. Service Centre (supra) does not aid the case of the appellants, cannot be accepted. As already noticed, the respondent has not been prosecuted for violation of the Control Order. Reliance on Allied Motors [ 2011 (12) TMI 789 - SUPREME COURT ] in our considered opinion, does not help the case of the respondent, for therein, what was alleged and ultimately held proved that the dealership was terminated without a show cause notice and in violation of principles of natural justice. That is not the pleaded case of the respondent herein. In the present facts, the respondents have taken issue with the process of collection of samples, being aggrieved by the fact that a third party, namely, SGS India was appointed to take samples and not with the lack of service of notice or any other such non-compliance of the principles of natural justice. That apart, the observations in National Insurance Company Ltd. v. Pranay Sethi [ 2017 (10) TMI 1276 - SUPREME COURT ] tell us that in deference to judicial discipline and decorum, the judgments/orders passed by a coordinate Bench are to be respected by another Bench of co-equal strength. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the writ petition filed on behalf of the present respondent, the Learned Single Judge observed as under:- it appears that there are specific provisions under Clause 7 of the aforesaid order of 2005 wherein the Gazetted Officer of both the Central Government and the State Government and also the police officer not below the rank of Deputy Superintendent of Police or the authorized officer of the Company itself duly authorized, can take sample and get it tested. But it appears that in the instant case that was not done by the respondent authorities. The aforesaid officers only have the competence to collect the sample and get the same tested. Since the respondents did not follow the aforesaid procedure there is clear violation of the rules and regulation applicable in the cases. xxx xxx xxx In my view, the entire action on the part of the respondent authorities in suspending the supply as well as cancellation of the dealership of the writ petitioner is contrary to law, arbitrary and violative of principle of natural justice 5. On appeal, the learned Division Bench relied on the judgment of this Court in Allied Motors Limited v. Bharat Petroleum Corporation Ltd (2012) 2 SCC 1 . I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 of the Essential Commodities Act, 1955 and therefore possess statutory force. The suspension of supply to the respondent was in terms of the aforesaid. It cannot choose to follow only those portions of the law that suit its position. The termination of the Agreement could not be carried out without adhering to the inspection guidelines as per the Control Order. (ii) Clause 39 of the Agreement uses the term duly authorized representative which is not defined in the Agreement. The Control Order under Clause 2(b) defines an authorized officer and it states that only such a person shall have power of search and seizure as per Clause 7. (iii) As per the quality control measures in Clause 27 of the Agreement, the opinion of the Chief General Manager on the contamination of products is slated to be final, however, termination of the respondent s license was issued by the Senior Regional Manager. (iv) The agreement does not prescribe any procedure for collection of samples, testing or any other procedure of alleged adulteration of products. The Control Order (2005) was preceded by a similar order of 1998 and both would be binding on an oil manufacturing company. As such the procedure m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the products whether partial or entire, and no claim will be entertained by the corporation therefor under any circumstances except in cases where the corporation is satisfied that loss arose from leakage from underground tanks or pipes which the dealer could not reasonably have discovered and of which the dealer gave immediate notice in writing to the corporation on discovery. Corporation will consider compensation only from the date of receipt of notice till leakage is rectified. 27. All the products supplied by the Corporation to the dealer hereunder shall be in accordance with the specifications laid down by the Corporation from time to time. The dealer shall take every possible precaution against contamination of the corporation s products by water, dirt or other things injurious to their quality and shall not in any way directly or indirectly alter the specifications of the said products as delivered. The Corporation shall have the right to exercise at its discretion at any time and from time to time quality control measures for products marketed by the corporation and lying with the dealer the opinion of the Chief Regional Manager for the time being at the corporation s Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it or suffer to be committed any act, in the opinion of the Chief Regional Manager of the Corporation on the time being at Calcutta whose decision shall be final, is prejudicial to the interest or good name of the Corporation or its products the Chief Regional Manager shall not be bound to give reason for such decision. II. The Motor Spirit and High Speed Diesel (Regulation of Supply, Distributor and Prevention of Malpractices) Order, 2005 2. Definitions - in this order, unless the context otherwise requires: (a) adulteration means [presence of marker in motor spirit and high speed diesel and/or] the introduction of any foreign substance into motor spirit or high speed diesel illegally or unauthorisedly with the result that the product does not conform to the requirements of the Bureau of Indian Standards specifications number IS 2796 and IS 1460 for motor spirit and high speed diesel respectively or any other requirement notified by the Central Government from time to time; (b) authorized officer means an officer authorized under the provisions of clause 7; x x x x x 7. Power of search and seizure - (1) any Gazette Officer of the Central Government or a State Government or any Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk lories at the retain outlet. 2.2.2.2 Oil companies have to draws the samples from all tanks of retail outlets as given below : a) From 1% of total No. of retail outlets under each divisions/controlling office every month till 31.12.05. b) From 10% p.m. of the total number of retail outlets w.e.f. 01.01.2006 which will be progressively increased to 20% p.m. from 01.01.2007 and 50% p.m. from 01.01.2008. 2.2.2.3 Persons/agencies authorized to draws samples are : Oil company officials Mobil labs Agencies authorized by oil companies. However, in case of stock variation beyond permissible limits, density, failure, filter paper test failure and during special drives/campaigns or in case of specific complaint against the retail outlets. Company officials are to draw samples and forward them for testing as per laid down procedure. Samples are to be drawn from nozzle (s) of the dispensing units from all tanks of both MS and HSD by the persons/agencies as referred above. All the inspecting officials shall bring their own aluminum containers for drawing samples. They will pay the cost of samples collected by them and obtain cash memo for the same. Consideration and Conclusion 9. As we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of mentioning time-frame for various activities such as sending samples to the laboratory preferably within ten days is to streamline the system and is in no way related to quality/result of the product. In view of the language of the Guidelines, the findings recorded by the High Court that the timeline is to be strictly adhered to cannot be sustained. 16. The Guidelines as mentioned in sub-clause (I) of Clause 2.5 of the Guidelines is to streamline the functioning i.e. the oil companies should not arbitrarily or without any justification send the sample for testing at their sweet will. . 10. What falls from the extract quoted above is that any person who contravenes the Control Order is liable to be punished by the Court. Therefore, for a person to be prosecuted for violating the provisions relating to search and seizure contained in Clause (7) thereof, such a person will have to be brought to the book, particularly, for having violated the said Control Order. 11. In contrast, as has been submitted by the learned counsel for the appellants, the respondent was sought to be prosecuted only for the violation of the terms of the agreement inter se the parties and not for any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has to be so done strictly in consonance with Rules/Guidelines framed in that regard. When a sampling test is being conducted a dealer is to be given prior notice so as to ensure his or his representative s presence can be secured. In the present facts, the respondents have taken issue with the process of collection of samples, being aggrieved by the fact that a third party, namely, SGS India was appointed to take samples and not with the lack of service of notice or any other such non-compliance of the principles of natural justice as discussed in the said judgment. 15. We have also perused the decision in Harbanslal Sahnia Anr. v. Indian Oil Corporation Ors. (2003) 2 SCC 107 . This judgment deals with the correctness of writ proceedings in respect of contractual matters. It was observed the petitioner s dealership which was their bread butter came to be terminated for an irrelevant and non-existent cause. As such, a writ petition would be maintainable. The maintainability is not an issue before us. Therefore, this judgment is not applicable to the present case. 16. That apart, the observations in National Insurance Company Ltd. v. Pranay Sethi, (2017) 16 SCC 680 tell us that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
