The petitioner herein made an application to the respondents on 01.08.2009 in pursuant to the publication made on 16.07.2007 for the appointment of retail outlet dealers. Thereafter, the interview was conducted on 14.11.2007 and the petitioner was declared as the first empanelled candidate.
2. However, an order was passed by the first respondent on 05.05.2008 canceling the selection of the petitioner as the first empanelled candidate for the retail out-let dealership at Magudanchavadi, Salem District, based upon a complaint that the site offered by the petitioner is not within the advertised stretch. The said order also indicates that the site offered by the petitioner is around 2 Kilometres from Salem towards Magudanchavadi and not between 4 to 15 Kilometres as required under the terms and conditions as well as the regulations of the respondents. The petitioner, thereafter gave a representation on 24.07.2008 stating that the land selected by the petitioner is not within 2 Kilometres as stated in the impugned order but about 5 Kilometres. The petitioner has also sought for certain documents which was also rejected. Therefore, the first respondent again rejected the said request on the ground that in view of the enquiry conducted, the impugned order cannot be reviewed. Challenging the above said orders passed by the first respondent dated 05.05.2008 and 12.08.2008, the above writ petition has been filed.
3. The learned counsel for the petitioner submitted that the impugned orders have been passed without affording an opportunity to the petitioner. The respondents cannot proceed to cancel the allotment made in favour of the petitioner merely based upon a complaint, which is anonymous in nature.
4. According to the learned counsel for the petitioner that the impugned order will have to be set aside for the violation of principle of natural justice since the petitioner has not been heard and provided with an opportunity to explain his stand that the site selected by the petitioner is within the prescribed limit as stipulated by the respondents. The learned counsel also drew the attention of this court to the guidelines issued by the respondents wherein the guideline No.19 is stated as follows:
"Grievance / Complaint redressal system :
(a) An aggrieved person may send his / her complaint to the oil company at the address of the customer service cell displayed at the nearest retail outlet of the concerned oil company. Complaints can also be lodged on the website of the oil company. No complaints against dealer selection will be entertained after one month from the date of publication of the result of the interview under any circumstances. Pending disposal of complaints. Issuance of LOI shall be kept in abeyance. Disposal of complaints shall be as per established complaint redressal system as specified herein below.
(i) Anonymous / Pseudonymous complaints will not be investigated.
(ii) On receipt of a complaint, a letter will be sent by the HPCL to the complaint through Registered Post asking the complainant to submit details of allegation with a view to prima facie substantiate the allegations along with supporting documents, if any, within 30 days.
(a) The complainant will be clearly advised that the oil company will examine the complaint and if it is established that the complaint does not have any substance, he / she will be liable for legal action. The oil company will examine response of the complainant and if it is found that the complaint does not have specific and verifiable allegations , the same will be filed.
(b) When a decision is taken to investigate the complaint the investigation will be done by one Senior Officer of HPCL and will pass a speaking order after giving due opportunity to the complainant etc., efforts will be made to ensure that the complaints are disposed of within three months from the date of receipt of response of the complainant copy of the speaking order will be given to all concerned.
Thereafter,decision on the complaint will be taken as under:
(i) Complaints not substantiated: The complaint will be filed and the complainant will be advised accordingly.
(ii) Established complaint: Action will be taken with regard to cancellation of the concerned selection after the due process as applicable. "
5. Hence, according to the learned counsel for the first respondent cannot act contrary to his own guideline which he has due to bound to follow. The learned counsel also relied upon a judgment recently rendered by this Hon'ble High Court reported in (2008) 7 MLJ 576 [R.Parkavi vs. Hindustan Petroleum Corporation Limited, rep by its General Manager SZ and another] which is identical to the present case on hand wherein the Hon'ble High court has set aside the order passed by the respondents and directed the respondents to proceed afresh by affording an opportunity to the petitioner in accordance with clause 19 of the guidelines of the respondents.
6. Per contra, the learned counsel for the respondents 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 of the respondents that any fact given by the petitioner is found to be not true then the allotment is liable to be canceled. According to the learned counsel inasmuch as during the enquiry, it has come to the knowledge of the respondents that the proposed site is within 2 Kilometers, the cancelation order will have to sustained. The learned counsel also relied upon the judgment reported in 2007 CDJ 427 [Shiv Kant Yadav vs. Indian Oil Corporation & Others] to submit that when a power is conferred upon the respondents to cancel the same cannot be questioned. The learned counsel further submitted that when the petitioner has acted to the contrary to the undertaking and when there is a factual misstatement or declaration made by the allottee then the respondents are well within their power to cancel the allotment.
7. There is no doubt that the respondents have the power of cancellation if there is an factual misstatement made by the petitioner or if the undertaking given by the petitioner is factually wrong and in a case of suppression of fact by the petitioner. However, before deciding as to whether the petitioner has given any factual misstatement, the petitioner should be given an opportunity to substantiate his case. As rightly contented by the learned counsel for the petitioner even the guidelines given by the respondents especially guideline No.19 specifically provides for a procedure to be followed. The guideline also provides that any anonymous/Pseudonymous complaiance will not be investigated. The said guideline also says that there is a time limit for looking into any complaint made by any aggrieved person. It is also seen that before deciding any such complaint given within the time limit, the concerned party will have to give an opportunity to the complainant as well as the affected party. The said provisions have been considered by the Hon'ble High Court in the judgment reported in (2008) 7 MLJ 576 [R.Parkavi vs. Hindustan Petroleum Corporation Limited, rep by its General Manager SZ and another]. The Hon'ble High Court has considered the identical case and allowed the writ petition giving liberty to the respondents to issue fresh notice and pass appropriate order on merits in accordance with law after giving necessary opportunity to the petitioner.
8. On reading of the said judgment, this court of the opinion that the said judgment is squarely applicable to the present case on hand. The judgment relied upon by the learned counsel for the respondents reported in 2007 CDJ 427 [Shiv Kant Yadav vs. Indian Oil Corporation & Others], in the opinion of this court is not applicable to the present case on hand. In the said judgment, a finding has been given by the Hon'ble Court that there was a misstatement regarding the undertaking whereas in the present case there is no adjudication regarding the fact as to whether the writ petitioner has look into the outlet within the limit prescribed by the respondents or not.
9. Further, in the said case, the question regarding the violations of principle of natural justice as well as clause 19 of the regulation of the respondents has not been considered. Therefore, considering the above said facts, this court is of the opinion that the said judgment relied upon by the learned counsel for the respondents is not applicable to the present case. Moreover, it has been informed by the learned counsel for the petitioner that the judgment reported in (2008) 7 MLJ 576 [R.Parkavi vs. Hindustan Petroleum Corporation Limited, rep by its General Manager SZ and another] has not been appealed against and the same has become a final and in fact the said judgment has been given effect to by the respondents.
10. Taking into consideration of the above said facts, this court is of the opinion that the impugned orders passed by the first respondent are liable to be set aside and accordingly the same are set aside. However, liberty is given to the first respondent to proceed with a fresh notice in accordance with law, after affording sufficient opportunity to the petitioner. While proceeding with the matter the first respondent is directed to pass appropriate orders on merits in accordance with law without being influence while the petitioner passed by the first respondent.
11. The learned counsel for the respondents submitted that the respondents are ready and willing to proceed with the enquiry, after affording an opportunity to the petitioner. The first respondent is granted time of four weeks from the date of receipt of a copy of this order to issue a show cause notice to the petitioner and the petitioner is given further time of four weeks thereafter to give his reply. The first respondent is further directed to pass final orders within a period of 4 weeks after receipt of the representation from the petitioner. The impugned orders passed by the respondents 1 and 2 are hereby quashed. The first respondent shall also give personal hearing to the petitioner in view of the fact the issue involved is regarding the location of the outlet to be established by the writ petitioner as to whether the same comes within the prescribed limit or not.
12. With these observations, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
20.08.2009 Index : Yes / No Internet : Yes / No ssp M.M. SUNDRESH, J.
ssp To
1. The Chief Regional Manager Hindustan Petroleum Corporation Limited 18/3, Big Bazaar Street Coimbatore 641 001
2. The General Manager Hindustan Petroleum Corporation Limited Thalamuthu Natarajan Building No.1, Gandhi-Irwin Road Egmore, Chennai 600 008
3. The Managing Director Hindustan Petroleum Corporation Limited 17, Jamshedji Tata Road Mumbai 400 020 M.M. SUNDRESH, J., ssp W.P.No.29465 of 2008 & M.P.No.1 of 2008 20.08.2009