Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Ashok Srivastava) Appearance:
For the Petitioners : Mr. R.N. Singh, Sr. Advocate, Mr. G.K. Malviya.
For the Respondents : Mr. Prakash Padia, & Mr. Ravi Shanker Prasad, Addl. Cheif Standing Counsel.
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Amitava Lala, J.-- This writ petition has been filed by the petitioners to get an order quashing the impugned order dated 28th December, 2010 and other consequential reliefs in connection thereto.
From the order impugned it appears to us that it has been passed in compliance of the order dated 29th October, 2010 passed in the earlier occasion by a Division Bench of this Court in Civil Misc. Writ Petition No. 58370 of 2010 (M/s. Chauhan Roadlines and another Vs. Union of India and others). Therefore, let us go through the order of the Division Bench to understand the scope and ambit of the order impugned herein. From the order of the Division Bench we find the Court was pleased to hold that firstly no procedure had been contemplated to conduct any enquiry and secondly, when blacklisting of a contractor is punitive in nature causing stigma being higher in degree than mere cancellation of contract, a proper enquiry is required to be made. Blacklisting, in other words, is more stringent in nature in which even the question of redemption does not arise. In the case of mere cancellation of licence, parties may be at liberty to avail alternative remedies available to them under the terms and conditions of the contract or under the law, as the case may be. Therefore, while allowing such writ petition, the Division Bench was pleased to direct the respondents to issue show cause notice/s to the petitioners regarding charges of malpractices within two weeks from the date of the judgement made ready and the petitioners were directed to submit their explanations within two weeks thereafter. The enquiry was directed to be conducted by taking into account the relevant documentary evidences, if any, produced by either side before the enquiry officer and was to be completed within the specified time as given therein.
Now, coming back to the order impugned, which has been passed following such direction, we find that two vehicles being Tank Truck (in short called as "TT") bearing registration nos. UP80 BJ 9458 and UP78 AN 2061, which were engaged in transportation of petroleum products, were found to be involved in malpractices, for which show cause notices were issued to the petitioners, reply whereof had also been submitted.
From the order impugned we find that in respect of the charges against first vehicle i.e. TT No. UP80 BJ 9458 it was submitted by the transporter/petitioners that such vehicle was subjected to maker test and density, which was found to be zero. But, according to Indian Oil Corporation (hereinafter in short called as "IOC"), it is not a correct statement. According to IOC, it is correct that density was found to be zero since it was mentioned in the first information report by the Police. Secondly, though according to the transporter such vehicle was subjected to maker test but it is not correct as per the team of IOC officials, who have seen physical condition of tank truck and drew samples. The transporter raised further contention with regard to non-availability of report of forensic laboratory but, according to IOC, the same is not tenable since the density of product at the destination was found to be zero which is different from the dispatch density as mentioned in the challan testifying that either the product or the tank truck was changed during the transit. It has further been recorded that the reply of the transporter does not explain the reasons for variation in the density. However, according to the transporter, the product found at the destination was same as loaded at Agra terminal.
So far as second vehicle i.e. TT No. UP78 AN 2061 is concerned, we find from the order impugned that the contention of the transporter was that such truck broke down due to some problem in its engine and hence could not report at RDI Kasganj for ten days, whereas normal travel around time is not more than one day. The allegation of security locking system being tampered has been denied by the transporter. IOC relied upon a committee report dated 04th September, 2010 submitted by officials of IOC after physical verification of the tank truck in presence of transporter's representative and upon obtaining their signatures to establish that there were signs of new welding, new painting and the colour of paint differed from the unique paint done at other places on the tank truck. The petitioners/transporter further stated that IOC has not conducted any investigation at all to find out complicity on the part of the carrier, to which only explanation has been given by the IOC that due enquiry has already been conducted by IOC by taking into account the relevant documentary evidences and no satisfactory explanation has been given by the transporter with regard to tampering of the locking system and variation in the density of the product. It is own case of the IOC that if it is proved that the TT crew alone is responsible for the malpractice/irregularity then that particular tank truck shall be blacklisted along with the TT crew. However, if the investigation reveals the complicity of the carrier then the whole contract comprising of all the TTs belonging to the concerned carrier shall be terminated and the concerned carrier and their all TTs shall be blacklisted on industry basis.
In Writ-C No. 19096 of 2011 (M/s. Shatakshi Transport Company Vs. Union of India and others) by an order dated 01st April, 2011, we have already held that when driver and helper are involved in the case of such nature, the concerned vehicle and such persons can be banned but not entire fleet of vehicles involved in transporting petroleum products.
Mr. Prakash Padia, learned Counsel appearing for the IOC, has contended that there is an arbitration clause which is exhaustive one and definitely this dispute can be resolved by the arbitrator. In support of such contention he has relied upon a judgement and order of this Division Bench dated 24th October, 2009 passed in Civil Misc. Writ Petition No. 23467 of 2007 (M/s. Sikandara Rao Gas Service and another Vs. Indian Oil Corporation and others) and further said that such judgement was challenged before the Supreme Court when special leave petition was dismissed. We are of the view that such case was related to termination of agreement of distributorship where the Court relegated the parties to invoke the jurisdiction of the arbitrator. But the present case is different from that case.
Following the ratio propounded in 1998 (8) SCC 1 (Whirlpool Corpn. Vs. Registrar of Trade Marks), in paragraph-7 of 2003 (2) SCC 107 (Harbanslal Sahnia and another Vs. Indian Oil Corpn. Ltd. and others) it has been held by the Supreme Court that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition 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. Dispute therein was regarding dealership of petroleum products and the subject matter was with regard to density and maintenance of density register and cooperation with the officers, who wanted to inspect the retail outlet and rather used unparliamentary language and displayed discourteous behaviour. While coming to conclusion the Supreme Court held that in such cases two contingencies apply i.e. fundamental right and natural justice, specially when the petitioners' dealership was their bread and butter, which came to be terminated for an irrelevant and non-existent cause. According to us, the present case is based on higher position than that one. Mr. Padia has cited two judgements of this Division Bench reported in 2010 (2) ADJ 292 (DB) (Arvind Kumar Singh Vs. Union of India and others) and 2010 (3) ALJ 259 (M/s. Allahabad Traders Vs. State of U.P. and ors.) wherein it has been held that blacklisting will have a penal consequences, therefore, unless an appropriate hearing on show cause is completed, no authority is allowed to pass such order of blacklisting. In such judgements, at the time of coming to conclusion this Division Bench has relied upon several Supreme Court judgements reported in AIR 1975 SC 266 (M/s. Erusian Equipment and Chemicals Ltd. Vs. State of West Bengal and another), AIR 1978 SC 930 [Joseph Vilangandan Vs. The Executive Engineer (P.W.D.), Ernakulam and others] and 1989 (1) SC 229 (Raghunath Thakur Vs. State of Bihar and others).
In this case, we do not find any description of enquiry with regard to TT crew. Without any enquiry/investigation with regard to TT crew i.e. driver, helper, etc., it is very difficult for the Court to come to a definite conclusion with regard to complicity of the carrier/ transporter. Grammatically, complicity is involvement with other people in an illegal activity or plan; a state of being an accomplice; participation in guilt. Clause 8.1.1(c) of the Industry Transport Discipline Guidelines speaks that in case of proven malpractice the entire contract will be terminated and their all TTs shall be blacklisted on industry basis. Hence, a definite conclusion with regard to involvement of the carrier/transporter in the malpractice is required to be arrived at. In such type of cases, a specific finding is needed with regard to complicity of the crew i.e. driver, helper, etc. independent of involvement of the carrier/ transporter, otherwise cloud about the involvement of the carrier/ transporter can not be dispelled. In other words, whether their involvement is independent of carrier/transporter or dependent upon carrier/transporter, is to be seen, particularly when we find that the authority, in the report, has come to a conclusion that the transporter in its reply was not able to provide any satisfactory explanation regarding tampering of the locking system and variation in the density of the product at the destination.
Against this background, we are of the view that order of blacklisting of the transport vehicles on industry basis can not be withdrawn at this stage but subject to further enquiry by the authority with regard to involvement of the TT crew i.e. driver, helper, etc. to come to a finding about the complicity of the carrier/ transporter. At the time of enquiry, concerned enquiry officer will be very careful with regard to the observations of this Court about complicity of the carrier/transporter.
Thus, the writ petition is treated to be disposed of with a direction upon the authority concerned to complete the further enquiry and pass a final order in this respect preferably within a period of fifteen days from the date of communication of this order.
No order is passed as to costs.
(Justice Amitava Lala) I agree.
(Justice Ashok Srivastava) Dated:10 May, 2011.
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Hon'ble Amitava Lala, J.
Hon'ble Ashok Srivastava, J.
The writ petition is treated to be disposed of.
No order is passed as to costs.
Dt./- 10.05.2011.
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For judgement and order, see order of the date passed on the separate sheets (six pages).
Dt./-10.05.2011.
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