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TMI Blog2024 (11) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 was issued to the petitioner, proposing the termination of the dealership. The essential allegations, as per the said notice, are with reference to a complaint received from a third party to the effect that the petitioner had issued a power of attorney in favour of another person, and, therefore, the petitioner was not the person running the retail outlet. To the afore notice, the petitioner submitted detailed objections dated 12.10.2022 as evidenced by Ext. P4. Later, a personal hearing was provided to the petitioner on 21.03.2023 at the State office of the 1st respondent herein. The petitioner was heard by one Sri. Sanjib Kumar Behera, Chief General Manager of the 1st respondent herein. Ext. P5 is the minutes of personal hearing. A perusal of Ext. P5 shows that the petitioner sought for ten days time to produce Income Tax Returns and related documents like balance sheets and Profit and Loss accounts in support of the stand of the petitioner that the allegations raised against her were baseless. Ext. P5 also shows that the petitioner was granted time till 01.04.2023 to submit the additional documents as prayed for by her. 3. The petitioner submits that thereafter, nothing was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. [(2010) 13 SCC 216] and Jayendra Vishnu Thakur v. State of Maharahstra and Another [(2009) 7 SCC 104] in support of the contention that the violation of the principles of natural justice has caused prejudice to the petitioner. v. He relies on ABL International Limited and Anr. v. Export Credit Guarantee Corporation of India Limited and Ors.[(2004) 3 SCC 553] to contend that the writ jurisdiction can be availed in the case at hand. 8. Per contra, Sri. E.K.Nandakumar, the learned senior counsel for the respondents, contends that: i. The petitioner was offered a dealership as a member of the backward community, and on account of the allegations proved against her, the 1st respondent is entitled to cancel the dealership and engage other genuine persons. ii. He refers to the arbitration clause under the dealership agreement and contends that the writ court is not to interfere. He relies on the judgment of the Apex Court in N.G. Projects Limited v. Vinod Kumar Jain and others [(2022) 6 SCC 127] as also the judgment of the Division Bench of this Court in W.A.No. 2923 of 2009 dated 26.08.2011 in support of the afore submission. iii. He points out that the hearing provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned that the courts should not find fault with a magnifying glass in its hand; rather, the courts are only to examine whether the decision-making process is correct. In my opinion, the afore judgment cannot be applied to the facts and circumstances of the case at hand, insofar as, here, the petitioner is complaining of the absence of procedural fairness since, according to her, there is violation of the principles of natural justice. The Apex Court, in the afore judgment, has also held that the High Court can examine whether the decision-making process is one in tune with the known principles of administrative law. Similarly, the judgment of the Division Bench in W.P.(C) No. 2923 of 2009, considered a situation where the dealership was terminated pursuant to certain discrepancies noticed in the quality of the products, which were supplied by the petroleum company to the dealer. This Court found that even if there may be a failure on part of the company to scrupulously follow the procedure prescribed, assuming so, that does not entitle the dealer to approach this Court in the exercise of the jurisdiction under Article 226 of the Constitution of India. However, I notice that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1] .) The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter, came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings." In the light of the afore principles, I am of the opinion that insofar as the allegation raised by the petitioner is with reference to the violation of the principles of natural justice at the hands of the 1st respondent herein, which is admittedly an instrumentality of the State, the petitioner is justified in approaching this Court under Article 226 of the Constitution of India. 12. The second question arising for consideration is with reference to the alleged violation of the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature and quality of the hearing contemplated and the nature and texture of the decision to be rendered must be carefully and alertly considered to answer the question whether in the given case the hearing/decision contemplated is an institutional one where the golden rule that the one who hears must also render the decision, can be deviated from. Thus, this Court noticed that there is a difference between an "institutional hearing" and "personal hearing". Thereafter, it is found that the fundamental rule that the "one who decide must hear" may not be strictly applied to "institutional hearing". In that case, ultimately this Court found that a hearing to be provided by the Commissioner of Commercial Taxes with reference to Section 59A(2) of the KGST Act was not institutional but personal. It is in the afore circumstances that this Court interfered with the impugned order therein and directed reconsideration of the issue. Therefore, the principles laid down in the afore judgment may not strictly help the case of the petitioner. 13. The question as to whether the hearing contemplated in the present case is an "institutional one" or "personal one" is now to be considered. 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is seen that the decision-making process is as under: i. A fact-finding letter is issued by the Divisional Retail Sales Head. ii. If the response from the dealer is not satisfactory, a show-cause notice is issued. iii. It is for the State Head to offer the personal hearing to the dealer. iv. The final proposal is to be placed before the competent authority for approval by the State Head. v. Decision is to be taken by the Director (Marketing), Head Office, Mumbai (Competent Authority). vi. Once it is so approved, the State Head issues the letters of termination intimating the approval by the competent authority. Thus, the 1st respondent contends that the case at hand concerns only an institutional hearing and not a personal hearing. 15. Along with the above, a reference to the agreement entered into between the petitioner and the respondent Corporation is also to be made. The petitioner has produced the said agreement as Ext. P1 along with this writ petition. It is seen that the agreement is entered into between the "Indian Oil Corporation" and the petitioner herein. A reading of the said agreement would also show that the appointment of the petitioner as the deale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r should be by the same officer. This is a very interesting question and Alridge case [1915 AC 120 : 84 LJKB 72] has been dealt with by Wade [Administrative Law, 6th Edn., p. 507 et seq]. We are of opinion that it is unnecessary to enter into a decision (sic discussion) of this issue for the purposes of the present case. Here the issue is one of grant of approval by the Government and not any particular officer statutorily designated. It is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners. We are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case." Again, the Apex Court in Kalinga Mining Corporation (supra) considered the applicability of the principles of natural justice with respect to the institutional hearing. That was a case where the concerned parties were heard by a Joint Secretary on behalf of the Central Government, but the order was passed by a Deputy Secretary. Considering the afore, the Apex Court found as under: "70. We also do not find much substance in the submission made by Mr Krishnan that the Order dated 27- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommunicated in the name of the Governor. The order may be signed by the Secretary/Additional Secretary/Joint Secretary/Deputy Secretary or Under Secretary, as the case may be. But the decision may or may not be one taken by the officer who signed it. In Sanjeevi's case (supra), the Apex Court has specifically upheld the power of the Minister concerned to call for any file and take a decision, even though the officers under him may be competent to deal with the said matter and also the power to issue directions to the officers regarding the disposal of a specific case and in that event the officers can take decision in that case, subject to such directions only. In some cases, the files have to be sent to the Chief Minister. In certain other matters, the Council of Ministers alone can take decision. We have quoted the Rules of Business, wherein there is mandatory consultation with Finance Department and Law Department on certain specified matters. So, a decision, as mentioned earlier, can never be taken according to the personal opinion of the Secretary, who heard the matter." Therefore, the Full Bench of this Court also has found that in cases where institutional hearings are prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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