9911796707
TMI Blog2024 (12) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... J ANTONY (RETD)., PROPRIETOR, M/S. COLONEL'S INDANE SERVICES, K.K. DINESH., PROPRIETOR, SREE MUTHAPPAN GAS, T.P. RAMACHANDRAN, PROPRIETOR, M/S. PADMALAYA INDANE SERVICES, SAJUNATH K.S, PROPRIETOR, M/S. KELAKAM INDANE, SAAJAN ALINKEEL, PROPRIETOR, M/S. ALINKEEL GAS AGENCIES, SUJATHA V K., PROPRIETOR, M/S. MAHE GAS AGENCIES, M/S.ASWATHY GAS AGENCIES, S.REJITHA, MANI C.V. Versus UNION OF INDIA, INDIAN OIL CORPORATION LIMITED, THE CHIEF AREA MANAGER, SMT.B. CHITHRA, THE GOODS AND SERVICES TAX COUNCIL, THE DIVISIONAL LPG HEAD THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON PETITIONERS: ADVS. SHASHANK DEVAN SRI.K.M.ANEESH SRI.DILEEP CHANDRAN SRI.ADARSH KUMAR, BIJU VARGHESE ABRAHAM DILEEP, ADV R.SURENDRAN RESPONDENTS: ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI.RAJA KANNAN, SRI.E.K.NANDAKUMAR, SMT.RAMOLA NAYANPALLY JUDGMENT [WP(C) Nos.9331/2020, 9360/2020, 9383/2020, 26790/2021, 30986/2023, 22290/2024 and 22392/2024] These writ petitions are filed by various LPG distributors appointed by the Indian Oil Corporation Limited (for short, the "respondent Corporation"), challenging the orders of penalty imposed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot having any legal authority and hence, the respondent Corporation cannot rely on the same and impose penalty. ii. The imposition of penalty under the MDG with reference to the average commission amount is without any justification and illegal since the commission earned is on the performed part, and penalty is levied on the non-performance. iii. More than 95% of active customers have double cylinders against their name and therefore, there is no necessity to supply refill cylinders within 2 to 7 days. iv. With reference to Clause 4.1, providing for the pattern of rating, it is contended that there is ambiguity. According to him, if 85% of delivery is affected in 2 days and the remaining 15% is done after 8 days, then a case would fall under both "Excellent" and "Poor". 7. I have considered the rival submissions and the connected records. 8. The following questions arise for consideration in these writ petitions: i. Is the respondent Corporation entitled to impose monetary penalty with reference to the provisions of MDG? ii. Is the time limit prescribed under Clause 4.2(viii), mandatory in nature? iii. Are the impugned orders in tune with the provisions of Clause 4.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object of the statute must be looked at .... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." The judgment of the Apex Court in P.T. Rajan v. T.P.M Sahir and others [(2003) 8 SCC 498] has also held as under: "48. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well-settled principle of law that where a statute functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Sinha v. District Magistrate of Monghyr, Nomina Chowdhury v. State of W.B. and Garbari Union Coop. Agricu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speaking order." A reading of the afore clause shows that the concerned officer is required to review the charges leveled in the show cause notice with reference to the reply received from the distributor and then pass a "speaking order." It is further provided that such "speaking order" is to indicate the "detailed reasons", as to why the reply filed is not acceptable and why the penal action is attracted. 14. In my opinion, such requirement to issue a "speaking order" is a basic tenet of administrative law. The allegations raised in the show cause notices are essentially with reference to the violation of the TDT norms under Chapter IV. When the MDG provides the dealer an opportunity to show cause against proposed action, it is imperative on the part of the officer concerned to consider the contentions raised/explanations offered and then arrive at a considered decision. As already found, by virtue of the judgment by the Division Bench of the Delhi High Court, the respondent Corporation is having every power and authority to act under the provisions of MDG. When that be so, it goes without saying that the directives in the MDG that a speaking order is required to be issued is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to the controversy in question and the decision or conclusion arrived at.' Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the 'inscrutable face of the sphinx', it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The 'inscrutable face of the sphinx' is ordinarily incongruous with a judicial or quasi-judicial performance." The above principles apply to the facts and circumstances of the case at hand. Therefore, the impugned orders are only to be found as violative of the stipulation prescribed under Clause 4.2(x) of the MDG. 16. In light of the afore, I am of the opinion that the impugned orders, to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
