IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.1602 of 2006
HIRALAL PRASAD
Versus
THE UNION OF INDIA & ORS
With
CWJC No.2150 of 2005
ASHARPHI PRASAD YADAV
Versus
THE UNION OF INDIA & ORS
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For the Petitioner :- Mr. Y.V. Giri, Sr. Adv.
Mr. Jyoti Saran, Adv.
For the Corporation :- Mr.K.D. Chatterji, Adv.
For the Intervenor :- Sri T.K.Jha, Sr. Adv.
Sri Anil Kumar Sinha, Adv.
8. 10.7.2008 Heard learned counsel for the parties in both the writ
petitions.
C.W.J.C. No. 1602 of 2006 has been filed for quashing the
letter dated 27.1.2006 issued by respondent no. 4, the Chief LPG
Manager, Indian Oil Corporation Limited, Bihar State Office, Patna
by which he has cancelled the petitioner’s selection for award of LPG
Distributionship for Chapra, District Saran and for further
consequential reliefs.
The short facts are that an advertisement was published in
the Hindi daily Hindustan on 28.8.2000 calling for applications for
award of LPG Dealership of Respondent Indian Oil Corporation
Limited at Chapra and other places in the open category for which the
last date for filing of the application was fixed as 11.10.2000. The
petitioner in C.W.J.C. No. 2150 of 2005, namely, Asharphi Prasad
Yadav and the petitioner in C.W.J.C. No. 1602 of 2006, namely,
Hiralal Prasad along with other persons applied for the said dealership
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and after following the due process the order dated 20.11.2003 was
issued by the Dealer Selection Committee in which the candidates
were selected in the order mentioned therein. The petitioner Hiralal
Prasad was number one candidate in the said panel and the petitioner
of the other case and intervenor in the first case, namely, Asharphi
Prasad Yadav was number two in the said panel and one Dr
Vishwanath Prasad Singh was shown as serial no.3 in the said
selection list. Subsequently, it appears that there was a complaint
made against the selection of the petitioner and the same was inquired
into by the Vigilance Department of the Corporation and on the basis
of the said enquiry as well as the investigation report it was found that
the allegations against the petitioner were substantiated and by the
impugned letter dated 27.1.2005 (Annexure- 13) based on the
findings of the investigation and the recommendation of the Vigilance
Department, the selection for the distributorship for Chapra, District
Saran was cancelled.
The grievance of the petitioner Asharphi Prasad Yadav in
the other writ petition, as per the law laid down by the Supreme Court
in the case of Anil Kumar Singh Vs. The Chairman, Dealers Selection
Board, Patna: 2004(1) PLJR (SC) 30, is that after the award of
dealership to the petitioner was cancelled then he being no. 2 in the
selection list ought to have been awarded the said dealership. In this
regard he relies upon Para 6 of the said decision which is quoted
below:-
“It is, however, pointed out to us that,
under the dealers selection manual if the first person
in the selection list is found ineligible then the matter
-3-would be referred by the ED/JM of the concerned oil
company to the Chairman of the Dealers Selection
Board, who will take a decision on issuance of Letter
of Intent to the second empanelled candidate. The
Indian Oil Corporation would be at liberty to follow
this procedure. However, we add that the normal
practice should be that unless and until there is some
disqualification of special reason for not doing so an
allotment would be made by the Dealers Selection
Board to the second empanelled candidate.”
Learned counsel for the petitioner Hiralal Prasad submits
that the impugned order dated 27.1.2005 has been passed by the
authorities without issuing any show cause to him and without
supplying copy of Vigilance report. It is submitted that the apparent
reason for doing the same appears to be the ground that the income of
the family of the petitioner during the relevant period in the financial
year starting from 1.4.1999 and ending on 31.3.2000 had exceeded the
maximum amount of Rs. Two lakhs stipulated in the advertisement. It
is submitted that the allegation was that the petitioner had not
disclosed the amount of rent which the wife of the petitioner was
receiving from the Punjab National Bank. It is admitted by the
petitioner that the said Punjab National Bank which is a tenant in the
premises of his wife was depositing an amount of Rs. 5000/- per
month in the loan account of his wife with the said bank and since
nothing was paid to his wife then under bonafide belief the same was
not disclosed.
It is pointed out by learned counsel that much prior to the
filing of the application for dealership there was a dispute between his
wife and the bank regarding enhancement of rent for the period from
14.4.1988. The matter was ultimately compromised before the Debt
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Recovery Tribunal where the bank had filed an application. On the
basis of the said compromise on 4.12.2001 arrears for the period from
14.4.1988 to 13.2.2002 was paid amounting to Rs. 9,83,510/-. after
deducting tax at sources amounting to Rs. 1,77,660/-. It is contended
that even if the said subsequent amount and the entire rental for the
financial year 1999-2000 is taken into consideration still the family
income of the petitioner comes to less than the Rs. 2,00,000/-
stipulated in the advertisement and the petitioner could have shown
the same to the Corporation had he been given the proper opportunity
by way of filing a reply to a show cause.
Learned counsel for the Indian Oil Corporation on the other
hand submits that the Corporation has acted on the basis of the
information received from the complainant and on the report of the
Vigilance Department of the Corporation. It is further submitted by
learned counsel that the question of income is very relevant since the
entire scheme has been framed in order to help such persons by the
grant of LPG dealership who are not very well off and for the said
reason the maximum family income of Rs. 2,00,000/- has been
stipulated. In this regard learned counsel relies upon a decision of a
Division Bench of this Court in the case of Alok Prasad Verma Vs.
The Indian Oil Corporation Limited: 2001(1)PLJR 235, in Para 17 of
which it has been laid down as follows:-
“The facts of the present case has to be
judged in the light of well settled law. In terms
of advertisement, the retail outlet dealership is
to be granted to an unemployed youth graduate
whose family has Rs. 15,000/- per annum
income. Any attempt to frustrate this object has
to be checked by the Corporation. The
-5-respondent No. 1 obtained the dealership
suppressing the fact that he has share in the
Cinema business, in the house which situate at
mohalla Chhajubag, Patna and also possessed of
agriculture land. The appellants having come to
know through different sources revoked the
letter of intent. The matter came to this Court
and this Court set aside the order primarily on
the ground that the same was done without
observing the principles of natural justice.
Thereafter the authorities issued a show cause
notice and supplied all the papers which were
filed against respondent No. 1 and respondent
no. 1 filed a show cause. While the matter was
pending, the appellant-Corporation got an
inquiry held and the concerned Officer also
submitted an inquiry report and that inquiry
report has also been relied upon while passing
the order adverse to respondent No. 1. This
Court as stated above, while quashing the earlier
order of revocation directed that all the
materials including inquiry report should be
supplied before passing final order. Admittedly,
that inquiry report was not supplied by the
Corporation which has been heavily relied upon
by the officers of the Corporation while
canceling the Letter of Intent. This non-supply
of the aforesaid report amounts to not carrying
out the direction given by this Court earlier.
This apart, it amounts to following an unfair
procedure while dealing with matter as non-
supply of the aforesaid inquiry report was not
just and fair as the same amount to breach of
principles of natural justice. We fully agree
with the view taken by the learned Single Judge
that the impugned order is vitiated because of
non-supply of some of the materials in terms of
the earlier direction given by this Court. As
stated above, while exercising the power of
judicial review, the Court has only to see
whether there is any infirmity in decision
making process. It cannot decide on merit as an
appellate forum. We have found that the
appellant-Corporation has erred in decision
making process by not supplying a copy of the
inquiry report before passing the final order. It
is made clear that other relevant documents
have been supplied. The impugned order
passed by the appellant-Corporation is vitiated
on this ground alone. In our view, it was not
necessary at all to go into the question on merit
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to find out as to whether respondent No. 1 has
income of Rs. 15,000/- or more. This decision
has to be taken by the authority and not by this
Court in exercise of power of review. In our
view, the learned Single Judge should not have
decided on merit.”
Relying upon the same, it is submitted by learned counsel
for the Corporation that the authorities having not supplied copy of the
enquiry report, the decision making process may have been vitiated to
that extent but the matter should go back to them for taking a decision
in the matter as laid down by this Court in the aforesaid case. Further,
it is the complaint of learned counsel that when the officer of the
Corporation had written to the bank regarding supply of the details of
the rental income a reply was received from the bank that they have
been directed not to disclose the same to any person. It is submitted
that once the petitioner had approached for the LPG dealership then he
cannot direct those who pay rent to a member of his family, namely,
his wife, not to disclose the rental income paid.
On a consideration of the aforesaid facts and circumstances,
this Court is in agreement with the contention of learned counsel for
the petitioner that the action of the respondent Corporation cannot be
upheld as the same is definitely in violation of the principles of natural
justice. The authorities of the Corporation having acted on the basis
of an investigation report made by their Vigilance Department, they
could not take action against the petitioner on the basis of the said
Vigilance report without first supplying a copy of the said report to
him and seeking his explanation/show cause reply with respect to the
same. That having not been done, the impugned order dated
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27.1.2006 stands vitiated and it is accordingly quashed.
However, as rightly contended by learned counsel for the
Corporation, the matter must now go back to the authorities of the
Corporation to take a fresh decision after complying with the
principles of natural justice including supplying of copy of the
Investigation Report, on which they purport to rely, to the petitioner
and after giving him a proper opportunity of explaining his stand; the
petitioner also would be obliged to ensure that the authorities of the
bank are not prevented from supplying the details of the rental income
paid to the petitioner’s wife in the financial year 1999-2000.
C.W.J.C. No. 1602 of 2006 is accordingly allowed with the
aforesaid directions. Let the final decision be taken by the authorities
of the Indian Oil Corporation within a period of four months from
today.
As laid down by the apex Court in the case of Anil Kumar
Singh (supra), the petitioner Asharphi Prasad Yadav would be entitled
to be considered in accordance with the decision therein, in case the
authorities decide to cancel the award of distributorship in favour of
petitioner Hiralal Prasad. C.W.J.C. No. 2150 of 2005 is accordingly
disposed of.
P. Kumar (Ramesh Kumar Datta, J.)