# M/s Modern Service Station v. I.O.C.L. & Ors

- **Citation:** (2023) 6 ILRA 452
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-18
- **Case number:** Writ-C No. 13514 of 2022
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-modern-service-station-v-i-o-c-l-ors-50308
- **Pages:** 10

## Headnote

Law-The
Constitution
of
India,1950-Article 14 & 226- Principles
of natural justice should not reflect as a
mere
empty
formality,
but
proper
opportunity of hearing deserves to be
given to the delinquent before taking
any action against him- the petitioner
has specifically taken his defence that
on 16.9.2020 the machines have been
opened up by the authorised service
engineer of OEM and he might have
been responsible for tampering with the
said machines. It was incumbent upon
the respondents to have addressed the
said issue duly considered the same and
recorded a finding in this regard. Not
adverting to the defence raised by the
petitioner, the prescribed authority as
well as the appellate authority have
abdicated the jurisdiction vested in them
and passed the impugned orders without
application of mind- Not dealing with
the issues raised by the petitioner as
defence,
is
also
violation
of
the
principles
of
natural
justice.
"Fair
hearing" and "opportunity of hearing"
during the enquiry proceedings would
have no meaning in case the enquiry
officer
does
not
consider
the
submissions raised in defence by the
person who is proceeded against. (Para
28 & 35)

Petition allowed. (E-15)

List of Cases cited:

## Text

452 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 452
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ-C No. 13514 of 2022

M/s Modern Service Station ...Petitioner
Versus
I.O.C.L. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Kumar Singh, Sri Ravi Anand
Agarwal, Ms. Shreya Gupta

Counsel for the Respondents:
Sri Rakesh Kumar

Civil
Law-The
Constitution
of
India,1950-Article 14 & 226- Principles
of natural justice should not reflect as a
mere
empty
formality,
but
proper
opportunity of hearing deserves to be
given to the delinquent before taking
any action against him- the petitioner
has specifically taken his defence that
on 16.9.2020 the machines have been
opened up by the authorised service
engineer of OEM and he might have
been responsible for tampering with the
said machines. It was incumbent upon
the respondents to have addressed the
said issue duly considered the same and
recorded a finding in this regard. Not
adverting to the defence raised by the
petitioner, the prescribed authority as
well as the appellate authority have
abdicated the jurisdiction vested in them
and passed the impugned orders without
application of mind- Not dealing with
the issues raised by the petitioner as
defence,
is
also
violation
of
the
principles
of
natural
justice.
"Fair
hearing" and "opportunity of hearing"
during the enquiry proceedings would
have no meaning in case the enquiry
officer
does
not
consider
the
submissions raised in defence by the
person who is proceeded against. (Para
28 & 35)

Petition allowed. (E-15)

List of Cases cited:

1. M/s Chaudhary Filing Point, Kazipur Vs St. of
U.P. & ors. passed in M.B Writ No.27043 of
2018

2. (M/s Kamla Kant Automobiles & anr. Vs St. of
U.P. & ors.) Writ C No.25127 of 2018

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Ms. Shreya Gupta, learned
counsel for the petitioner as well as Sri
Rakesh Kumar for the respondents.

2. The petitioner has approached this
Court being aggrieved by the order dated
21.9.2020 passed by Area Manager Retail
Sales, Mathura - I, Indian Oil Corporation
Limited thereby stopping the sales from
their dispensing units until further orders.
The petitioner has also assailed the order
dated 5.10.2021 passed by Divisional
Retail Sales Head, Agra Division Office,
Marketing Division, Indian Oil Corporation
Limited
(Marketing
Division),
Agra
thereby
terminating
the
retail
outlet
dealership of the petitioner.

3. The petitioner being aggrieved by
the order of cancellation of his retail outlet
dealership had preferred an appeal which
has also been rejected by means of
impugned order dated 7.4.2022 passed by
Executive Director (Retail Sales -N &
E)/Appellate
Authority,
Indian
Oil
Corporation
Limited,
Head
Office,
Mumbai.

4. It has been submitted that the
petitioner was appointed as a dealer in
6 All. M/s Modern Service Station Vs. I.O.C.L. & Ors.
453
terms
of
petrol/HSD
Pump
Dealer
Agreement
dated
11.4.2021
executed
between the petitioner and Indian Oil
Corporation. They were further granted a
license for carrying on business in the name
and style of M/s Modern Service Station
situated at Yamunapar, Laxmi Nagar,
Mathura. It is stated that since 11.4.2021
the petitioner has been conducting the sales
from the outlet in accordance with the
terms and conditions of the agreement as
well as Marketing Discipline Guidelines
and there has never been grievance from
any corner or any allegation against the
petitioner with regard to their retail
dealership.

5. It has further been submitted that
the petitioner's retail outlet has two
Dispensing Units manufactured by M/s
Gilbarco Veeder Root (hereinafter referred
to as M/s GVR). One of these two
dispensing units is old and the second unit
of High Speed Diesel (HSD) was procured
from some other retail outlet by the
respondent and was installed at the
petitioner's retail outlet in 2019. Both the
units are being maintained / inspected by
engineers from M/s GVR and concerned
government authorities and officers of the
respondent corporation.

6. It is further submitted that the
dispensing units require regular periodic
stamping
by
Weights
and
Measures
Department which were regularly done and
the last stamping of the unit was done on
23.3.2019 by Weights and Measures
Department and M/s. Gilbarco Veeder
Root. Whenever there was any problem in
running the two dispensing units the
complaints were lodged by the petitioner
which were expeditiously looked into by
M/s GVR and the said units were lastly
inspected on 14.1.2020 by the officers of
the respondent-corporation and it was
reported that all the seals are intact and no
variation was found in the stocks.

7. It is stated that prior to cancelling
the stamping of the dispensing unit certain
amounts have to be deposited by the
petitioner and accordingly the said amounts
were deposited by the petitioner on
13.3.2020 and re-stamping was due but
owing to COVID 19 conditions and lockdown the said stamping was extended till
30.9.2020.

8. It is stated that as their stamping of
the dispensing units was due and the Area
Manager, Retail Sales, Mathura-I visited
the pump of the petitioner and orally asked
them not to dispense the oil as their restamping was pending and accordingly on
the basis of oral orders, they stopped the
sales from 15.9.2020 on-wards. It has
further been submitted that on 16.9.2020
the authorized service engineer of M/s
Gilbarco Veeder Root by the name of Mr.
Girendra,
who
was
authorized
representative
of
the
respondent
corporation, visited the retail outlet and was
handed over the keys of both the dispensing
units for the purpose of up-gradation of the
software but he noticed certain defects in
the mother board and he handed over the
report which has been annexed along with
the writ petition. According to the said
report the seal was broken for the purpose
of checking of the machines and for certain
repair works but stamping could not be
done by him, and he further noted that CPU
cards are required to be replaced.

9. It has been submitted that the
authorised agent left the machines in the
same conditions, without repairing or
stamping them and also without closing the
dispensing units and the petitioner was
454 INDIAN LAW REPORTS ALLAHABAD SERIES
under belief that that he would visit them
on the next day i.e. 17.9.2020 to repair the
said machines. He had reported that both
the machines were defective, and the
motherboard was require to be replaced
and, therefore, stamping could not be done.

10. On the very next date i.e.
17.9.2020 the petitioner's retail outlet was
jointly inspected by a team comprising
MS(Retail Sales) Mathura II, RSA-Shri
Pradeep Kumar, Service Engineer of
Gilbarco Veeder Root and Mr. Gopal
Singh, LMO Mathura and Mr. A. S.
Kushwaha (respondent No.4). During the
said inspection it was found that seal of
both the dispensing units was broken and
extra soldering with small wire was found
on both the motherboards which were
removed from the dispensing units, sealed
and handed over to Area Manager (Retail
Sales).
The
inspection
report
dated
17.9.2020 was prepared and was also
countersigned by authorized retailer of the
petitioner.
The
said
cards
were
subsequently sent to M/s GVR for their
report on the said card. According to the
said report extra soldering work was
observed in the mother boards and extra
wire sealing was also found between the
connector and the mother board. It was
found that extra soldering work was done
and sealing connector of the said wire was
found torn and wire broken with intent to
manipulate the dispensing unit and deliver
fuel from the dispensing units. Pending
report from the Indian Oil Corporation the
sale of the petitioner was stopped by means
of letter dated 21.9.2020 on the ground that
certain irregularities have been observed in
the petitioner's retail outlet at the time of
joint inspection on 17.9.2020. Show cause
notice was also issued to the petitioner on
8.10.2020 calling upon them to explain as
to why action be not initiated in terms of
clause 5.1.4 of the Marketing Discipline
Guidelines-2012/Dealership Agreement.

11. The petitioner denied the
allegations
levelled
against
him
by
submitting reply on 12.10.2020 and also
informed the respondents about visit of the
authorised engineer of O.E.M. i.e. M/s
GVR by the name of Mr. Girendra. The
sales of the petitioner's retail outlet were
stopped pending the inquiry.

12. Petitioner approached this Court
by filing writ petition No.23158 of 2020
which was disposed of by this Court by
means of order dated 18.12.2020 directing
the respondents to conclude the pending
inquiry initiated against the petitioner,
expeditiously, preferably within a period of
four weeks. It is in pursuance of the order
passed by this Court that joint inspection of
the retail outlet was conducted by the same
team who had conducted the inspection
previously on 17.9.2020. After receiving
the said report on 5.3.2021 a show cause
notice was given to the petitioner on
21.3.2021 referring to the report submitted
by M/s GVR. The petitioner replied to the
show cause notice on 31.6.2021 and after
considering the reply of the petitioner by
means of order dated 5.10.2021 the dealer
agreement dated 11.4.2011 was cancelled
in terms of clause 5.1.4 of the Marketing
and Discipline Guidelines.

13. The petitioner being aggrieved by
the said order had filed an appeal which has
also been rejected by means of order dated
7.4.2022. Both the aforesaid orders have
been impugned before this Court in the
present writ petition.

14. Learned counsel for the petitioner
while assailing the order of termination as
well as appellate authority has submitted
6 All. M/s Modern Service Station Vs. I.O.C.L. & Ors.
455
that both the orders are illegal and arbitrary
and have been passed in violation of the
principles of natural justice. It is stated that
one of the grounds taken by the petitioner
in their response to the show cause notice
was with regard to visit of the authorized
agent of M/s GVR on 16.9.2020. It was
stated that the authorized representative had
visited the retail outlet to upgrade the
software and also to conduct stamping of
the dispensing units had broken the seals to
access the motherboards. It was submitted
that at the time of inspection the machine
was lying in the same condition as was left
after the authorised agent of M/s GVR had
attempted to repair the dispensing units,
and consequently it cannot be said that it is
the petitioner who can be held responsible
for
tampering
of
manipulating
the
motherboards.

15. It is also stated that it is evident
from his report that the authorised agent
had checked the CPU seal and found them
to
be
defective
and
had
advised
replacement of the said cards. It was stated
that tampering if any may have been done
by the authorized representative. To decide
the said issue a joint inspection was
conducted by 17.9.2020, and according to
the inspection report prepared on the said
date it has been noticed that the seals have
been broken . The petitioner in his response
had stated that they have been running the
dispensing unit for last nine year and there
has never been any complaint with regard
to their operation of the said outlet.

16. It is also noticed that in paragraph
8 of the of the response they have clearly
mentioned about the fact about the visit of
the authorized service engineer of M/s
GVR Mr. Girendra and also the fact that he
had informed the petitioner that he had
upgraded
the
software
in
both
the
dispensing units and also that some
problems /defect seemed to have occurred
in the CPU cards of both the dispensing
units, and as such he was unable to
complete his job and advised that CPU
cards need to be replaced and pending
aforesaid working machines were left open.
It has further been submitted that it was the
normal practice of the respondents that if
there is any problem in mother boards they
are immediately sent to OEM for testing
but in the present case the OEM cards were
kept in possession of the respondents for
over 2 months before they were sent for
testing and, hence, by the said date there
was sufficient time for tampering with the
said motherboards. There is no explanation
forthcoming from the respondents as to
why the mother boards were kept with
them for over two months before sending
them for testing and obtaining the report
from the OEM regarding the fact as to
whether there was any tampering or
soldering.

17. They had further stated that in the
inspection report prepared on 17/09/2020
there was no mention of tampering or
soldering but the same was mentioned in
the report submitted by OEM. The
petitioners have denied their involvement
in the said tampering if any. They have
further stated that the report should have
been obtained from the authorized service
engineer of the M/s GVR who had opened
the dispensing unit on 16.9.2020 prior to
proceeding against the petitioner.

18. The response of the petitioner was
considered by Executive Director (State of
U.P.) Office - II, Noida and the order of
termination of the agreement was passed by
Divisional
Retail
Sales
Head,
Agra
Division, Agra. In the said order of
termination, he has considered the report
456 INDIAN LAW REPORTS ALLAHABAD SERIES
submitted by OEM M/s GVR where it was
clearly found that motherboards have been
tampered with and certain extra soldering
work was done which accordingly may
lead to manipulations of these two
dispensing units. It has further been stated
that merely because the dispensing units
were in custody of the petitioner, they have
been held to be guilty of tampering with the
said dispensing units and the retail outlet
dealership has been cancelled.

19. Learned counsel for the petitioner
assailing the impugned orders submits that
even the reply submitted by them has not
been
considered
while
passing
the
impugned order of termination of the retail
outlet. It is submitted that detailed facts
have been narrated in the reply with regard
to breaking up of the seal by authorized
service engineer of OEM M/s. GVR on
16/09/2020 and also the fact that he had
inspected the motherboards and had also
submitted his report in this regard.

20. It is stated that tampering, if any,
could have been done by authorized agent
in as much as admittedly he had opened the
said machine. The competent authority
while
terminating
the
retail
outlet
dealership has not even considered this
aspect of the matter or recorded a finding
with regard to the defence taken by the
petitioner and, hence, in this regard it is
stated that the impugned orders is vitiated
on the ground of non-application of mind.
It is further submitted that this aspect of the
matter was specifically taken in the appeal
preferred by the petitioner but still the
appellate authority chose to ignore the
defence raised by the petitioner and
rejected the appeal.

21. Learned counsel for the petitioner
submits that the essential facts which have
been raised by the petitioner in their
defence have been illegally and arbitrarily
ignored by the respondents leading to
miscarriage of justice and accordingly both
the orders impugned are illegal and
arbitrary and are liable to be set aside.

22.

Learned
counsel
for
the
respondent has defended the action of the
Indian Oil Corporation. He has submitted
that tampering with dispensing units is a
serious offence and provision for the same
have been clearly laid down in Marketing
and Discipline Guidelines. On inspection
dated of 17.9.2020 of motherboards it was
found that there were additional soldering
and wire attached to the said motherboards
leading to irrefutable evidence that the said
units have been tampered with and in the
said situation where the dispensing units
are in exclusive custody of the petitioner, it
is the petitioner who is responsible, and
there is no infirmity in the decision of the
respondents to terminate the retail outlet
dealership. He has further submitted that
due opportunity
was given
to
the
petitioner where a show cause notice was
him, and a preliminary inquiry was
conducted prior to initiating action
against the petitioner. It has further been
submitted that entire action was based on
the report submitted by the inspecting
team led by MS (Retail Sales), MathuraII who had inspected the site and
submitted report that motherboards have
been tampered with and extra soldering
and wire attached to the motherboards
which clearly demonstrates that the
motherboards have been tampered with
for manipulation of the delivery of the oil
and, hence, submits that the impugned
orders are legal and correct.

23. I have heard learned counsel for
the parties and perused the records.
6 All. M/s Modern Service Station Vs. I.O.C.L. & Ors.
457

24. It is noticed that an agreement was
entered into between the petitioner and the
respondents way back on 11.4.2011 where
the petitioner was given the retail outlet
dealership situated at Yamunapar, Laxmi
Nagar, Mathura and they have acted as a
dealer for the respondents for the last
nearly nine years and there has been no
complaint whatsoever till the inspection
was conducted on 17.9.2020. In the said
inspection certain tampering have been
found in mother boards. During inspection
the motherboards were taken out and sent
for inspection to the OEM which reported
that there was extra soldering and wire
attachment to the motherboard and it seems
that they have been tampered with leading
to manipulation in operation of the
dispensing units. As a dispensing unit are
an exclusive control of the dealer, there is a
presumption that is responsible for the said
manipulations.

25. Show cause notice was given to
the petitioner. The petitioner replied to the
said notice stating that that certain testing
had been done on 16.5.2010, which is a day
prior to the joint inspection where the
service engineer of M/s GVR had visited
the retail outlet. Before commencing the
repair he has informed the petitioner that he
has obtained oral permission from the
OEM as well as from the authorities of
Weights and Measurement Department to
inspect the said machines for the purpose of
stamping of the cards. He had worked on
the said machine for nearly two hours and
could not complete the work on the said
date and the work was to be continued after
replacement of the motherboards. He
submitted his report which is annexed
along with the writ petition. From the said
report it evident that he has found that
certain defects in mother boards and was
of the opinion that the same require
replacement and because of which the job
of software up-gradation could not be
taken up on the same day. It has further
been stated that the machines were kept in
the same state as they were left by the
authorised agent for the aforesaid purposes.
The
retail
outlet
was
subjected
to
inspection on the very next date i.e.
17.9.2020. The inspecting team visited the
retail outlet of the petitioner and found
tampering in the motherboards where extra
soldering and wire were found. A show
cause was given to which the petitioner
submitted detailed reply culminating in the
impugned order of termination.

26. Even in appeal of the petitioner
the moot question raised was as to whether
the petitioner can be held responsible for
tampering with the mother board in
peculiar facts and circumstances of the case
where the machine was opened by
authorised agent of M/s GVR a day prior to
the inspection.

27. It is noticed that firstly that this
aspect of the matter was duly brought to
the notice of the competent authority in
the reply to the show cause notice
tendered by the petitioner, but the
respondents chose not to address the said
issue and proceeded to terminate the retail
outlet
dealership
agreement
of
the
petitioner
without
adverting
to
the
submissions made in the reply. This
specific aspect was also raised in the
appeal preferred by the petitioner, but the
appellate authority also chose to ignore the
said vital aspect of the matter while
rejecting the appeal preferred by the
petitioner. Needless to say that both the
authorities have acted in most illegal and
arbitrary manner where they have chosen
to ignore the grounds raised by the
petitioner in his reply.
458 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Due opportunity of hearing was
necessary to be provided to the petitioner
before any action could be taken against
him. It is settled proposition of law
delineated by Supreme Court in catena of
judgments that principles of natural justice
should not reflect as a mere empty
formality,
but
proper
opportunity
of
hearing deserves to be given to the
delinquent before taking any action against
him. In the present case the petitioner has
specifically taken his defence that on
16.9.2020 the machines have been opened
up by the authorised service engineer of
OEM and he might have been responsible
for tampering with the said machines. It
was incumbent upon the respondents to
have addressed the said issue duly
considered the same and recorded a finding
in this regard. Not adverting to the defence
raised by the petitioner, the prescribed
authority as well as the appellate authority
have abdicated the jurisdiction vested in
them and passed the impugned orders
without application of mind. It was
necessary for the respondents to have
obtained response of OEM as well as
Service Engineer who had visited the retail
outlet on 16.9.2020 before proceedings
against the petitioner. This vital piece of
evidence was lost when the respondent
authorities chose to ignore this aspect of the
matter while dealing with the issue relating
to
termination
of
dealership
of
the
petitioner.

Not dealing with the issues raised
by the petitioner as defence, is also
violation of the principles of natural justice.
"Fair hearing" and "opportunity of hearing"
during the enquiry proceedings would have
no meaning in case the enquiry officer does
not consider the submissions raised in
defence by the person who is proceeded
against. Opportunity of hearing would
include due consideration of all the
defences raised by the person who is
proceeded against, and failing to consider
the reply would be a clear violation of the
principles of natural justice, and such an
order would be arbitrary and violative of
article 14 of the Constitution of India.

29. The retail outlet dealership of the
petitioner has been terminated merely on
the
basis
of
the
presumption,
only
considering the report of the OEM which
only indicates that the mother board have
been tampered with but still it was
necessary for the respondents to return a
finding that it was the petitioner, who was
responsible for tampering with the mother
board. Merely the basis of the allegations
the agreement could not have been
cancelled, in absence of cogent evidence
pointing towards the involvement of the
petitioner
in
such
tampering
and
manipulation. Such action should not have
been taken merely on the basis of
presumption rather there has to be some
cogent and reliable evidence with regard to
tampering
the
motherboard
by
the
petitioner so as to take action against the
respondents. This evidence could have
been made available had the respondent
organization during the enquiry examined
or recorded the statement of authorized
service engineer of M/s GVR who had
visited the retail outlet on 16.9.2020 and
opened the dispensing unit after breaking
open the seal. In absence of vital piece of
evidence there is no other material which
could link tampering of mother boards with
the petitioner.

30. The enquiry officer as well as the
appellate authority failed to consider the
reply of the petitioner in this regard which
leads to the irresistible conclusion that the
impugned order has been passed without
6 All. M/s Modern Service Station Vs. I.O.C.L. & Ors.
459
application of mind. Even otherwise, this
Court is of the considered view after
examining the material available on record
that there is no evidence which can link
tampering of the mother boards to the
petitioner, except the fact that the machines
were in exclusive custody of the petitioner.
We also considered that prior to the
inspection the dispensing units had been
opened by the authorised service engineer
of M/s GVK. No effort was made to record
the evidence of the service engineer which
could have demonstrated whether he had
handled the motherboards or not. In light of
the above this court is of the considered
view that the findings recorded by the
prescribed
authority
linking
the
manipulation
of
motherboard
to
the
petitioner is not borne out from the records
and therefore the impugned orders are
illegal and arbitrary accordingly set aside.

31. The next question arises is as to
whether after setting aside the impugned
orders whether the matter should be
remitted back to the respondents to
reconsider, and proceed after removing the
infirmity pointed out by this Court and to
revisit the order of termination or natural
consequence may be allowed to be
followed i.e. restoration of the license to
run the outlet.

32. In this regard counsel for the
petitioner has submitted that in similar
circumstances
in
the
case
of
M/s
Chaudhary Filing Point, Kazipur Vs. State
of U.P. and others passed in M.B Writ
No.27043 of 2018 where also the matter
relating to tampering of mother board came
up before this Court and this Court was of
the considered opinion that there was no
actionable evidence which can related to
tampering being done by the petitioner and
according
restored
the
retail
outlet
dealership of the petitioner therein.
Relevant paragraph of the judgment is
quoted as under:-

"As seen from the reading of the
impugned order, the only reason assigned
for being not satisfied with the explanation
offered by the petitioner was that there was
tampering in the DU and pulsar card
contains certain soldering marks. However,
what was not considered by the competent
authority was that at what point of time this
unauthorized
tampering/soldering
was
done in the dispensing unit and how the
dealer is manipulating the distribution of
fuel. No material, much less credible one
has been brought on record by the
respondents to disclose the unauthorized
access to the equipment by the petitioner. It
was specific stand of the petitioner that
periodically
the
Weights
and
Measurements
Department
officials
inspected the seals and they were found to
be intact. Furthermore, what is the impact
on tampering/soldering in delivery unit is
not disclosed.
How
the
dealer
can
manipulate delivery of fuel by inserting
such unit is not explained. The only
objective of a dealer to tamper with
dispensing unit is to manipulate delivery of
fuel. In this case, the delivery of fuel was
found to be accurate prior to checking of
unit and after the checking. Furthermore,
the defence of the petitioner that it is
possible that the supplier himself might
have done soldering while repairing for
proper functioning of the unit by supplier
himself cannot be brushed aside."

33. Similarly, reliance has also been
placed on another judgment of this Court
passed in Writ C No.25127 of 2018 (M/s
Kamla Kant Automobiles and another Vs.
State of U.P. and others) which has held as
under:-
460 INDIAN LAW REPORTS ALLAHABAD SERIES

"After holding that the order
dated 24.7.2017 is bad in law and liable to
be quashed, the question arises as to
whether the petitioner is entitled to
restoration of dealership. There being no
violation of any clause of agreement, no
proceedings
have
culminated
in
accordance with law and after being
exonerated of all the allegations levelleld
against the petitioner only natural outcome
has to be restoration of all benefits which
the
petitioner
was
deprived
of
unauthorizedly."

34. Sri Rakesh Kumar appearing for
the
respondent-oil
corporation,
has
submitted that once it is noticed that there
is defect / infirmity in the proceedings then
it would be appropriate to remit the matter
back to the competent authority to consider
the aspect of the matter which has not been
considered by them and pass fresh orders of
termination has been passed. In this regard
it is noticed that principles of natural justice
come to the rescue of a delinquent against
whom action is proposed. The import of
principles of natural justice is that a person
against whom action is taken should be
given adequate opportunity of hearing so as
to adequately defend itself. In the present
case, it is noticed that apart from the fact
that the petitioner had submitted a detailed
reply but still the respondents failed to
consider all the aspect of the matter before
terminating the retail outlet dealership
agreement.

35. It is further noticed that the
evidence which was available when the
defect in the proceedings was pointed out
by the petitioner would no longer available
after such a long lapse of time though it
was incumbent upon the respondent -
organization to have recorded the statement
of the authorized service engineer of OEM
during the inquiry. It has been informed
that the said authorised service engineer is
no longer in employment as per the
respondents. In the peculiar facts of the
present case, this Court is of the considered
view that a matter, at the discretion of the
court,
can
be
remitted
for
fresh
consideration only when there is nonadherence of the principles of natural
justice, and the infirmities pointed at by the
Court of such nature which can be cured by
remitting the matter before the prescribed
authority. Non recording of vital piece of
evidence is not part of the procedure, but
related to the merits of the case and once
inquiry has been concluded and it is found
that the charges are not proved, then it
would not be fair to the delinquent to
remand the matter for recording further
evidence which may have been available
but not recorded. Wherever there is
violation of principles of natural justice, the
rights of the delinquent to defend himself is
violated and matter is remitted to the
inquiry officer to provide full opportunity
to the delinquent. No such right has been
recognized or vests in prosecution to be
given another chance to proceed afresh and
be permitted to record further evidence
which was not recorded previously and
then to pass a fresh order of penalty against
the
person
proceeded
against.
Once
proceedings have been completed against
the delinquent, then principal of double
jeopardy would operate against remitting of
the matter at the behest of the prosecution
and therefore it would not appropriate to
remit the matter for taking fresh evidence.

36. In light of the above discussion
the order of termination of dealership as
well as the appellate order are illegal and
arbitrary and, as such, the orders dated
21.9.2020, 5.10.2021 and 7.4.2022 are set
aside.
6 All. Smt. Sudha Devi Vs. Union of India & Ors.
461

37. The respondents are directed to
restore the retail outlet dealership of the
petitioner forthwith.

38. The writ petition stands allowed.
----------
(2023) 6 ILRA 461
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 23238 of 2011

Smt. Sudha Devi ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Arvind Srivastava, Sri Abhay Raj Yadav

Counsel for the Respondents:
A.S.G.I., Sri Devi Shanker Shukla, S.C., Sri
Tarun Verma, Sri Yogendra Kumar Yadav

Civil Law - Selection of Kisan Sewa Kendra
Dealer (Retail Outlet) - Guidelines of the
Indian Oil Corporation Ltd regarding the
allotment of retail outlets - Petitioner
filed consent affidavits of co-sharers in
Plot No. 370/1 after the submission of the
application form. Indian Oil Corporation
awarded zero marks to the petitioner for
the potentiality of land. Held: As per the
guidelines of the Indian Oil Corporation
regarding the allotment of retail outlets, if
the land is owned by the petitioner along
with other persons and the share of the
petitioner exceeds the requirement set by
Indian Oil Corporation, then the petitioner
was required to submit a registered
agreement with the other co-sharers,
showing their consent along with the
demarcated part of his share. In instant
case, the petitioner did not comply with
the above requirements by failing to file
the consent of the other co-sharers
through a registered agreement at the
time of submitting the application form,
nor at the time of the interview held on
12.11.2010. Required documents should
have been filed by the last date of
submitting the application form. Any
documents
filed
later
cannot
be
considered. Therefore, the affidavit of the
co-owners regarding consent, filed after
the submission of the application, cannot
be taken into consideration. Failure to
award marks for the potentiality of land
(capacity to provide infrastructure and
facilities) to the petitioner cannot be
considered erroneous. (Para 14, 16)
Dismissed. (E-5)
List of Cases cited:
1. Saurav Mittal Vs Indian Oil Corporation Ltd. &
ors. - Writ C No. 54357 of 2013
2. Smt. Sangeeta Gupta Vs U.,O.I. & ors. - 2009
(7) ADJ 534 (DB)
3. Madhu Singh Vs U.O.I. & ors. - 2013 ADJ
Online 0398
(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the petitioner, Sri Anant
Kumar
Tiwari,
learned
counsel
for
respondent no.1-Union of India and Sri
Devi Shanker Shukla, learned counsel for
respondent nos.2, 3 and 4.

2. Present petition has been filed by
the petitioner initially challenging the result
dated 12.11.2010 regarding selection of
Kisan Sewa Kendra Dealer (retail outlet) at
Rampuriya Awwal in District-Chitrakoot.
Subsequently, petition was amended and
order dated 11.04.2011 passed by General