SAVITA SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners, who are running LPG Gas agency at Baraut, district Baghpat have come up in this writ petition challenging the show cause notice issued by the Chief Regional Manager of the Hindustan Petroleum Corporation by which the petitioners' supplies have been suspended and they have been asked to submit reply as to why necessary action be not taken against them. Counter affidavit and rejoinder affidavit have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided.

(2.) Brief facts of the case as emerged from pleadings of the parties are that a LPG gas agency was awarded to Smt. Shanti Devi, the wife of late Bireshwar Sharma, a freedom fighter on compassionate ground under the order dated 14.7.1987, issued by the Ministry of Petroleum and Natural Gas. By letter of intent dated 21.5.1988, LPG distributorship was awarded to Smt Shanti Devi, who was working as school teacher. Smt. Shanti Devi died on 4.1.1998. A fresh agreement dated 1.1.2000 was entered between the Corporation and Smt. Savita Sharma, the petitioner no. 1, the daughter of late Smt. Shanti Devi and Vivek Sharma, the petitioner No. 2, son of petitioner no. 1. The distributorship was reconstituted in the name of petitioner no. 3, a partnership firm with petitioner no. 1 and 2 as partners. The agreement has been renewed up to 1.1.2015. The Corporation had framed Market Discipline Guidelines namely; MDG 2001. Inspections were made of the petitioner's premises in the year 2008, 2011, 2012 and 2013. On the basis of inspections dated 5.5.2011, 30.9.2011, a penalty of Rs. 6,78,300/- was imposed towards shortage of 266 cylinders of 19 KG by debit note dated 12.3.2012. On 26.3.2012, the petitioners wrote to the Corporation that they shall deposit 266 cylinders within a week. On 11.4.2012, the petitioner wrote to the Chief Regional Manager that 110 cylinders were with the parties without connections, who have been given new connections and 156 cylinders have been deposited on the plant hence, the debit note dated 12.3.2012 be cancelled. The petitioner also sent a complaint to the Deputy General Manager, New Delhi requesting for cancelling the debit note dated 12.3.2012, which complaint was forwarded by the Deputy General Manager to the Chief Regional Manager by letter dated 19.2.2013 and 4.3.2013. The respondent no. 5, Dharmpal Gupta was transferred to Loni and joined as Chief Regional Manager on 7.5.2012. On 20.6.2012, a debit note was again issued for an amount of Rs. 6,78,300/- which amount was deducted from the petitioner's account namely; Refill Quota Account. On the basis of inspection dated 1.5.2012, by an order dated 28.2.2013 again penalty of Rs. 5,45,415/- was imposed on the petitioner. A debit note for the aforesaid amount was issued on 2.3.2013 and the amount was deducted from the aforesaid account of the petitioner. Again on 22.9.2012, inspection of the petitioner's premises was made and by debit note dated 18.3.2012, penalty of Rs. 90,000/- was imposed and deducted from the account of the petitioner. Another inspection is claimed to be made on 11.1.2013 a show cause notice dated 9.2.2013 was issued to the petitioner which was replied by the petitioner on 24.2.2013. The petitioner on 20.3.2013 filed a criminal complaint No. 1253 of 2013 against Dharmpal Gupta, Chief Regional Manager under Section 406 of the IPC. In the complaint allegations were made that criminal breach of trust was committed by the Chief Regional Manager in withdrawing the amount from the Refill Quota Account, which was meant only for payment towards refill supplied by the Corporation. Chief Judicial Magistrate by order dated 3.5.2013 summoned Dharmpal Gupta, the respondent no. 5 under section 406 I.P. C. An application under section 482 Cr.P.C. was filed by the respondent no. 5, being Criminal Misc. Application No. 1810 of 2013 in this court, in which application by order dated 27.2.2013 proceedings of complaint case No. 1253 of 2013 has been stayed. The application under section 482 Cr.P.C. is pending consideration in this Court.

(3.) The Chief Regional Manager issued a show cause notice dated 18.6.2013 asking the petitioner to show case as to why action be not taken against the petitioner on account of discrepancies and irregularities committed as mentioned in the show cause notice. By the same show cause notice supplies of the petitioner were suspended exercising the power under Clause 29A of the agreement. The petitioner received the show cause notice on 21.6.2013 and immediately on 27.6.2013, he wrote a letter asking for relevant materials and evidences mentioned in the notice supplied to the petitioner to enable him to submit a reply. Time for submitting the reply was also prayed to be extended. On 28.6.2013, the petitioner again wrote to the Deputy General Manager, New Delhi as well as to the Chairman of the Corporation stating that the Chief Regional Manager has no jurisdiction to issue show cause notice and issuance of the show cause notice is illegal exercise of powers by the Chief Regional Manager. It was further stated that the Chief Regional Manager being accused in criminal case no. 1253 of 2013, the show cause notice, issued by him be set aside. On 29.6.2013, the petitioner raised various preliminary objections to the show cause notice dated 18.6.2013, which were sent to the Deputy General Manager as well as to the Chairman of the Corporation. Copy of the said preliminary objections have been filed as Annexure-12 to the writ petition. The petitioner in his objection has submitted that Chief Regional Manager has taken action against the petitioner due to personal grudge and issuance of the show cause notice is a malafide exercise of power. It was further stated that show cause notice is in substance a pre-decision of all the issues by the Chief Regional Manager. It was stated in the objections that power to suspend the supplies can be exercised only by the Zonal Officer and exercise of such power by the Chief Regional Manager is contrary to the Marketing Discipline Guidelines, 2001. The petitioner submitted preliminary objections reserving his right to file detailed reply after receipt of the materials as prayed for. This writ petition was filed by the petitioner on 4.7.2013 challenging the show cause notice/ order dated 18.6.2013 with the following prayers: