M. Madhavi v. The Chief Regional Manager Hindustan Petroleum Corporation Limited

IN THE HIGH COURT JUDICATURE AT MADRASDATED : 20.08.2009CORAMTHE HONOURABLE MR.JUSTICE M.M. SUNDRESH W.P.No.29465 of 2008 & M.P.No.1 of 2008M. Madhavi.. Petitioner Vs.1. The Chief Regional Manager Hindustan Petroleum Corporation Limited 18/3, Big Bazaar Street Coimbatore – 641 0012. The General Manager Hindustan Petroleum Corporation Limited Thalamuthu Natarajan Building No.1, Gandhi-Irwin Road Egmore, Chennai – 600 0083. The Managing Director Hindustan Petroleum Corporation Limited 17, Jamshedji Tata Road Mumbai – 400 020RespondentsPRAYER: Writ petition filed under Article 226 of the Constitutionof India praying to issue a Writ of Certiorarified Mandamus againstthe respondents herein calling for the records culminating in thesecond respondent proceeding / letter dated 05.05.2008 bearing RefSZ:TD:RET and the first respondent's proceeding his letter dated12.08.2008 in CBERO:PNR/RET and quash the same and direct therespondents to grant permission to the petitioner to put up retailoutlet of petrol in the same selected site land comprised in SurveyNo.42/1 part, 23/2A 1B3, 23/2A1A, 23/2A1B1, 24/1A and 24/2A,situated in Kanagagiri Village, Kakkapalayam, Sankagiri Taluk,Salem District.For Petitioner : Mr.V.Ragupathi For Respondents:Mr.O.R.SanthanakrishnanO R D E R The petitioner herein made an application to the respondentson 01.08.2009 in pursuant to the publication made on 16.07.2007 forthe appointment of retail outlet dealers. Thereafter, the interviewwas conducted on 14.11.2007 and the petitioner was declared as the https://hcservices.ecourts.gov.in/hcservices/ first empanelled candidate. 2. However, an order was passed by the first respondent on05.05.2008 canceling the selection of the petitioner as the firstempanelled candidate for the retail out-let dealership atMagudanchavadi, Salem District, based upon a complaint that thesite offered by the petitioner is not within the advertisedstretch. The said order also indicates that the site offered by thepetitioner is around 2 Kilometres from Salem towards Magudanchavadiand not between 4 to 15 Kilometres as required under the terms andconditions as well as the regulations of the respondents. Thepetitioner, thereafter gave a representation on 24.07.2008 statingthat the land selected by the petitioner is not within 2 Kilometresas stated in the impugned order but about 5 Kilometres. Thepetitioner has also sought for certain documents which was alsorejected. Therefore, the first respondent again rejected the saidrequest on the ground that in view of the enquiry conducted, theimpugned order cannot be reviewed. Challenging the above saidorders passed by the first respondent dated 05.05.2008 and12.08.2008, the above writ petition has been filed. 3. The learned counsel for the petitioner submitted that theimpugned orders have been passed without affording an opportunityto the petitioner. The respondents cannot proceed to cancel theallotment made in favour of the petitioner merely based upon acomplaint, which is anonymous in nature. 4. According to the learned counsel for the petitioner thatthe impugned order will have to be set aside for the violation ofprinciple of natural justice since the petitioner has not beenheard and provided with an opportunity to explain his stand thatthe site selected by the petitioner is within the prescribed limitas stipulated by the respondents. The learned counsel also drew theattention of this court to the guidelines issued by the respondentswherein the guideline No.19 is stated as follows:"Grievance / Complaint redressal system :(a) An aggrieved person may send his / hercomplaint to the oil company at the address of thecustomer service cell displayed at the nearestretail outlet of the concerned oil company.Complaints can also be lodged on the website of theoil company. No complaints against dealer selectionwill be entertained after one month from the date ofpublication of the result of the interview under anycircumstances. Pending disposal of complaints.Issuance of LOI shall be kept in abeyance. Disposalof complaints shall be as per established complaintredressal system as specified herein below.(i) Anonymous / Pseudonymous complaints will https://hcservices.ecourts.gov.in/hcservices/ not be investigated.(ii) On receipt of a complaint, a letter willbe sent by the HPCL to the complaint throughRegistered Post asking the complainant to submitdetails of allegation with a view to prima faciesubstantiate the allegations along with supportingdocuments, if any, within 30 days. (a) The complainant will be clearly advisedthat the oil company will examine the complaint andif it is established that the complaint does nothave any substance, he / she will be liable forlegal action. The oil company will examine responseof the complainant and if it is found that the complaint does not have specific and verifiableallegations , the same will be filed. (b) When a decision is taken to investigate thecomplaint the investigation will be done by oneSenior Officer of HPCL and will pass a speakingorder after giving due opportunity to thecomplainant etc., efforts will be made to ensurethat the complaints are disposed of within threemonths from the date of receipt of response of thecomplainant copy of the speaking order will be givento all concerned. Thereafter,decision on the complaint will betaken as under: (i) Complaints not substantiated: The complaintwill be filed and the complainant will be advisedaccordingly. (ii) Established complaint: Action will betaken with regard to cancellation of the concernedselection after the due process as applicable. "5. Hence, according to the learned counsel for the firstrespondent cannot act contrary to his own guideline which he hasdue to bound to follow. The learned counsel also relied upon ajudgment recently rendered by this Hon'ble High Court reported in(2008) 7 MLJ 576 [R.Parkavi vs. Hindustan Petroleum CorporationLimited, rep by its General Manager – SZ and another] which isidentical to the present case on hand wherein the Hon'ble Highcourt has set aside the order passed by the respondents anddirected the respondents to proceed afresh by affording anopportunity to the petitioner in accordance with clause 19 of theguidelines of the respondents. 6. Per contra, the learned counsel for the respondents https://hcservices.ecourts.gov.in/hcservices/ submitted that the petitioner is bound by the instructions,guidelines as well as the terms and conditions of the respondents.As per the terms and conditions, if it comes to the knowledge ofthe respondents that any fact given by the petitioner is found tobe not true then the allotment is liable to be canceled. Accordingto the learned counsel inasmuch as during the enquiry, it has cometo the knowledge of the respondents that the proposed site iswithin 2 Kilometers, the cancelation order will have to sustained.The learned counsel also relied upon the judgment reported in 2007CDJ 427 [Shiv Kant Yadav vs. Indian Oil Corporation & Others] tosubmit that when a power is conferred upon the respondents tocancel the same cannot be questioned. The learned counsel furthersubmitted that when the petitioner has acted to the contrary to theundertaking and when there is a factual misstatement or declarationmade by the allottee then the respondents are well within theirpower to cancel the allotment. 7. There is no doubt that the respondents have the power ofcancellation if there is an factual misstatement made by thepetitioner or if the undertaking given by the petitioner isfactually wrong and in a case of suppression of fact by thepetitioner. However, before deciding as to whether the petitionerhas given any factual misstatement, the petitioner should be givenan opportunity to substantiate his case. As rightly contented bythe learned counsel for the petitioner even the guidelines given bythe respondents especially guideline No.19 specifically providesfor a procedure to be followed. The guideline also provides thatany anonymous/Pseudonymous complaiance will not be investigated.The said guideline also says that there is a time limit for lookinginto any complaint made by any aggrieved person. It is also seenthat before deciding any such complaint given within the timelimit, the concerned party will have to give an opportunity to thecomplainant as well as the affected party. The said provisions havebeen considered by the Hon'ble High Court in the judgment reportedin (2008) 7 MLJ 576 [R.Parkavi vs. Hindustan Petroleum CorporationLimited, rep by its General Manager – SZ and another]. The Hon'bleHigh Court has considered the identical case and allowed the writpetition giving liberty to the respondents to issue fresh noticeand pass appropriate order on merits in accordance with law aftergiving necessary opportunity to the petitioner. 8. On reading of the said judgment, this court of the opinionthat the said judgment is squarely applicable to the present caseon hand. The judgment relied upon by the learned counsel for therespondents reported in 2007 CDJ 427 [Shiv Kant Yadav vs. IndianOil Corporation & Others], in the opinion of this court is notapplicable to the present case on hand. In the said judgment, afinding has been given by the Hon'ble Court that there was amisstatement regarding the undertaking whereas in the present casethere is no adjudication regarding the fact as to whether the writpetitioner has look into the outlet within the limit prescribed bythe respondents or not. https://hcservices.ecourts.gov.in/hcservices/

9. Further, in the said case, the question regarding theviolations of principle of natural justice as well as clause 19 ofthe regulation of the respondents has not been considered.Therefore, considering the above said facts, this court is of theopinion that the said judgment relied upon by the learned counselfor the respondents is not applicable to the present case.Moreover, it has been informed by the learned counsel for thepetitioner that the judgment reported in (2008) 7 MLJ 576[R.Parkavi vs. Hindustan Petroleum Corporation Limited, rep by itsGeneral Manager – SZ and another] has not been appealed againstand the same has become a final and in fact the said judgment hasbeen given effect to by the respondents.10. Taking into consideration of the above said facts, thiscourt is of the opinion that the impugned orders passed by thefirst respondent are liable to be set aside and accordingly thesame are set aside. However, liberty is given to the firstrespondent to proceed with a fresh notice in accordance with law,after affording sufficient opportunity to the petitioner. Whileproceeding with the matter the first respondent is directed to passappropriate orders on merits in accordance with law without beinginfluence while the petitioner passed by the first respondent.11. The learned counsel for the respondents submitted that therespondents are ready and willing to proceed with the enquiry,after affording an opportunity to the petitioner. The firstrespondent is granted time of four weeks from the date of receiptof a copy of this order to issue a show cause notice to thepetitioner and the petitioner is given further time of four weeksthereafter to give his reply. The first respondent is furtherdirected to pass final orders within a period of 4 weeks afterreceipt of the representation from the petitioner. The impugnedorders passed by the respondents 1 and 2 are hereby quashed. Thefirst respondent shall also give personal hearing to the petitionerin view of the fact the issue involved is regarding the location ofthe outlet to be established by the writ petitioner as to whetherthe same comes within the prescribed limit or not.12. With these observations, the writ petition is allowed. Nocosts. Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrar ssp https://hcservices.ecourts.gov.in/hcservices/ To1. The Chief Regional Manager Hindustan Petroleum Corporation Limited 18/3, Big Bazaar Street Coimbatore – 641 0012. The General Manager Hindustan Petroleum Corporation Limited Thalamuthu Natarajan Building No.1, Gandhi-Irwin Road Egmore, Chennai – 600 0083. The Managing Director Hindustan Petroleum Corporation Limited 17, Jamshedji Tata Road Mumbai – 400 020+1 cc to Mr.V.Raghupathi, Advocate, SR.No.40628+1 cc to Mr.O.R.santhanakrishnan, Advocate, SR.No.40598W.P.No.29465 of 2008 & M.P.No.1 of 2008NG {CO}TP/2.9.2009.