IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

PRESENT:
The Hon’ble Justice Subrata Talukdar

W.P. 16119 (W) of 2013

with
CAN 10622 of 2014

Sachidanand Singh
-Vs.-
Indian Oil Corporation & Ors.

For the Petitioner : Mr. Bikash Ranjan Bhattacharya

Mr. Soumya Majumder
Mr. Dibyendu Chatterjee
Ms. Madhuparna Kanrar
Mr. Siddhartha Ray

For the Respondent Nos. 1-5 : Ms. Vineeta Meharia

Mr. Amit Kumar Nag
Mr. Piyush Agarwal

For the Respondent No. 6 : Ms. Debjani Mitra

Heard on : 21/01/2016

Judgment on : 11/05/2016

Subrata Talukdar, J.: In this writ petition challenge is thrown to

the impugned show cause notice dated 23rd April, 2013 issued by

the Indian Oil Corporation Ltd. (for short IOCL) against the sole

proprietorship firm of the writ petitioner. By the show cause notice

the writ petitioner was called upon to reply regarding the

genuineness of a handwritten Credit Worthiness Certificate dated

15th December, 2006 issued by the Bank of India (for short BOI),

Motihari Branch, Bihar submitted by the writ petitioner along with

his application for selection as a retail outlet dealer of the dealership

in issue, being located on Vivekananda Road, District- North 24

Parganas off the Dunlop Bridge/BT Road/Dakshineswar Traffic

Point (hereinafter referred to for short as the said dealership).

The short facts presented by Sri Bikash Ranjan Bhattacharya,

Ld. Senior Counsel for the petitioner are that the petitioner applied

for the said dealership, as per the terms advertised and, was

selected at the close of a rigorous selection procedure. The Letter of

Intent (for short LOI) was issued in favour of the petitioner on 9th

August, 2007 and the petitioner, upon completion of the formalities,

received the letter of appointment on 13th August, 2007. Pursuant

to the said LOI and the letter of appointment the petitioner has been

functioning as a dealer of the said petroleum retail outlet to the

satisfaction of IOCL. In this connection Sri Bhattacharya submits

that an agreement was also executed between IOCL and the

petitioner on 17th August, 2007.

During the functioning of the said dealership the appointment

of the petitioner was challenged in a writ petition by one Ashoke

Kumar Kundu, being the second empanelled candidate to the

selection. Such challenge was mounted on the platform of several

alleged discrepancies in the documentary affidavits submitted by the

petitioner while claiming the said dealership.

Sri Bhattacharya submits that the writ petition being WP

17883(W) of 2007 filed by the said Ashoke Kumar Kundu against

IOCL and others, was dismissed by judgment and order dated 9th

July, 2010 passed by an Hon’ble Single Bench. It is pointed out by

Ld. Senior Counsel that the Hon’ble Single Bench had the occasion

to deal with each of the individual complaints and found them to be

not sustainable. Sri Bhattacharya submits that these complaints,

inter alia, related to the nature of the affidavits submitted by the

petitioner in support of his claim to the location of the said

dealership as well as to other affidavits of third parties in support of

the ability of the petitioner to execute the necessary quantum of

business. At paragraphs 6, 7 & 8 of the judgment and order dated

9th July, 2010, the Hon’ble Single Bench was pleased to hold as

follows:-

“6. The main submission of Ms. Mukherjee is that the

investigation was not properly done on the basis of these
allegations. I have examined the affidavits, copies of which form
part of pleadings. As regards errors in these affidavits, I find
the same is not of a high degree. The description of the location
broadly corresponds to the actual location. The case of the
petitioner is that the location of the outlet is not on the crossing
of Dunlop and B.T. Road but between Dunlop Bridge B. T. Road
crossing and Dakshineswar. This is a minor error in description.
So far as the name of the deponent in the affidavit of Fuldip
Singh, the examining authorities did not find any gross error. A
copy of this affidavit has been made Annexure “R3” in the
affidavit-in-opposition of the oil company. I find 5 from this
affidavit that the affidavit has been affirmed in the name of
Fuldip Singh, and there is signature also, which is not legible.
Below this signature, the name Kuldip Singh appears in capital
letters. This does not appear to me the signature of the
deponent. Since the signatory has been identified by a learned
Advocate, and no specific case has been made out that there is
no Fuldip Singh but only Kuldip Singh, I do not think this Court
can review the decision of the oil company based on their own
investigation. As regards the affidavit of Tiwari, in the absence
of any statement made on oath that he never filed any affidavit,
I do not think this Court can take cognizance of such allegation.
The other allegation that one Thakur Tiwari did not own any
vehicle was also examined and dealt with by the investigating
body of the oil company. Ms. Vinita Meheria appeared on behalf
of the Indian Oil Corporation, and she submitted that the
investigation was done as per the existing norms. Dr.
Chakraborty appeared for the private respondent and
submitted that it was Fuldip Singh himself who had signed the
affidavit.

7. The disputes raised in this writ petition are essentially

factual in nature. The petitioner himself had not complained
against the grant of the dealership to the private respondent at
the initial stage but he has mainly relied on the complain of two
other individuals. I do not think an unsuccessful applicant can
 come forward with a complain against a successful applicant
by two unconnected individuals has not been investigated
properly. None of the complainants have come forward before
this Court. I have gone through the errors or discrepancies 6
pointed out on behalf of the petitioner and find them to be minor
discrepancies. In the light of these facts, in my opinion this
Court has to accept the finding of the investigating agency of the
oil company. As regards the decision cited on behalf of the
petitioner, I do not think there has been any gross suppression
of material fact which would attract the ratio of the decision of
the Hon’ble Supreme Court in the case of B. R. Chowdhury
(supra) in the facts of the present case. In the present case, the
site disclosed in the affidavits broadly corresponds to the site
for which the application was invited. In the case of Hindusthan
Pertroleum Corporation (supra) the actual site was altogether
different from the one which was disclosed. I have already
observed that the error in description of the site was minor, and
cannot be treated to be fatal in nature. Certain other authorities
were cited on behalf of the parties on the scope of judicial
review in the matters of this nature. These authorities lay down
well-established principles of administrative law, and I do not
consider it necessary to individually refer to these authorities
for the purpose of adjudication of this writ petition.

8. Under these circumstances, the writ petition fails.”

On the strength of the above noted judgment and order of the

Hon’ble Single Bench dated 9th July, 2010 Sri Bhattacharya submits

that for all purposes the appointment of the petitioner to the said

dealership stood affirmed. Sri Bhattacharya points out that in its

affidavit-in-opposition to the writ petition of Ashoke Kumar Kundu

(supra), the respondent-IOCL had stated as follows:-

“b. Selection of a dealer is made by a selection committee,

which is an expert body, after taking into account and after
appreciating various factors and materials. The Hon’ble High
Court in its constitutional writ jurisdiction usually does not sit
as a court of appeal over such assessment and reappreciate the
various factors and materials, which were taken into account
by the selection committee.

c. The writ petitioner has made false and misleading allegations

in the writ petition knowing the same to the false.

d. The writ petition proceeds on the sole basis that letter of

intent was awarded to respondent no. 6 by respondent
authorities without investigating into complaints made by third
parties regarding selection of respondent no.6. This allegation
is wholly false and misleading for the reasons stated herein
later.”

Therefore, Sri Bhattacharya asserts that the complaints

against the petitioner were found to be baseless upon investigation

by IOCL and such issue questioning the said dealership cannot be

reopened at this stage by issuance of the impugned show cause

notice dated 23rd April, 2013.

Next, Sri Bhattacharya takes this Court to the judgment and

order of the Hon’ble Division Bench dated 11th March, 2011 passed

in MAT 183 of 2010 which was an appeal preferred by the said

Ashoke Kumar Kundu to the order of the Hon’ble Single Bench

dated 9th July, 2010. Sri Bhattarcharya points out that the Hon’ble

Division Bench did not find any infirmity in the judgment of the

Hon’ble Single Bench and consequently also did not notice any

arbitrariness or illegality in appointing the petitioner to the said

dealership.

The judgment of the Hon’ble Division Bench dated 11th May,

2011 was carried by way of a Special Leave Petition (SLP) by the said

Ashoke Kumar Kundu before the Hon’ble Apex Court which was

dismissed on the 9th of September, 2011. Sri Bhattacharya therefore

reiterates that the selection of the petitioner has attained finality and

the impugned show cause notice dated 23rd April, 2013 cannot be

allowed to proceed. Therefore, Ld. Senior Counsel for the petitioner

prays for quashing of the impugned show cause notice.

Appearing for the IOCL, Ms. Vineeta Meharia, Ld. Counsel

submits that the nature and purport of the impugned show cause

notice dated 23rd April, 2011 is different from the subject matter of

the first round of litigation. According to Ms. Meharia, the first

round of investigation carried out by IOCL centred around the

validity of the documents submitted by the petitioner along with his

application. Such documents did not include the said Credit

Worthiness Certificate issued by the then Manager, BOI, Motihari

Brach.
 Ms. Meharia points out that subsequently the corporate office

of IOCL received a complaint to be investigated by the Central

Vigilance Commission under the Public Interest Disclosure

Protection of Informer Resolution (for short PIDPIR). The said

complaint was forwarded by the Vigilance Department to the IOCL at

Motihari for investigation. During enquiry the Vigilance Department

issued a communication on the 24th of May, 2010 to the BOI

requesting confirmation of the genuineness of the Credit Worthiness

Certificate issued in favour of the petitioner.

By reply dated 12th July, 2010 BOI confirmed that the

Manager of Motihari Branch who issued the certificate on 12th July,

2006 has stated in writing that although the certificate was written

by him, the last three words “to Rs. 15 lac” were however not in his

handwriting. The said certificate appears at both pages 170 and

162 of the writ application.

Pursuant to the reply of BOI dated 12th July, 2010 the

Corporate Office of IOCL by letter dated 20th February, 2013 directed

the West Bengal State Office of IOCL to take suitable action against

the petitioner in terms of Clause 45 of the Dealership Agreement.

Accordingly, by the show cause notice dated 23rd April, 2015 the

petitioner was asked to clarify on the forged nature of the Credit

Worthiness Certificate since, such forgery, attracts “termination of

dealership in terms of Clause 45(b)(i) of the Dealership Agreement”.

Clause 45(b)(i) reads as follows:-

“(b) Upon……….

(i) If any information given by the Dealer in his application

for appointment as a dealer or in any document supplied
therewith or filed in support thereof shall be found to be
untrue or incorrect;”

Ms. Meharia submits that the petitioner bought time on the

Credit Worthiness Certificate by seeking documents from IOCL by

his letter dated 6th May, 2013 which were promptly supplied by the

communication from IOCL dated 10th May, 2013. Ms. Meharia

points out that since the petitioner was further buying time qua his

reply to the show cause notice, IOCL issued a reminder dated 27th

May, 2013 instructing the petitioner to submit his explanation

within seven days from the date of receipt of such reminder.

Ms. Meharia further points out that the petitioner then carried

the impugned show cause notice for adjudication by way of the

present writ petition and, by order dated 13th June, 2013 an Hon’ble

Single Bench was pleased to stay, on prima facie satisfaction,

further proceedings arising out of the show cause notice. Such

interim order was extended until further orders.

 Ms. Meharia relies on the authority of the Hon’ble Apex Court

reported in 2004 (2) SCC 177 (at paras 9 & 11) and 2007 (4) SCC

410 to make the point that the present writ petition is pre-mature

and, the petitioner is required to answer the show cause notice. Ms.

Meharia further submits that the prima facie satisfaction of IOCL to

proceed with the show cause notice is justified since the author of

the said certificate, one B.K. Das has himself denied on affidavit to

have written the last three words, viz. “to Rs. 15 lac”.

Representing the respondent no.6, being the then Manager of

Motihari Branch of BOI, Ms. Debjani Mitra relies on his affidavit to

clarify in extenso as follows:-

“2. I say that on or about October 2005, I was posted at Bank of

India, Motihari Branch, under Muzaffarpur Zonal Office, Post
Office- Motihari, District- East Champaran, Bihar, PIN- 845401
and was posted there till May, 2007.

3. The petitioner at the relevant period of time was maintaining

a Savings Account with the Bank of India, Motihari Branch and
had been introduced by one of the high valued customers of the
said Branch.

As such, at the request of the petitioner vide his letter

dated 15.12.2006, I as the then Branch Manager of the Bank of
India issued a letter dated 15.12.2006 to the petitioner
extending financial assistance as per landing norms of the
Bank of India.
 However, I strongly deny and dispute that I have ever
written the last three words of the second paragraph of the
aforementioned office letter dated 15.12.2012 i.e. “to Rs. 15
Lacs”.

I further say that no commitment of extending financial

assistance for may specific amount was expressed either in the
said letter or during verbal discussions with the petitioner.

4. I further submit that the petitioner at the relevant period of

time used to maintain his accounts at the Motihari Branch,
Bank of India and used to pay official and courtesy visits to the
said Branch. On or about December, 2006, the petitioner
informed me that he will participate in a tender bidding for a
retail outlet dealership of the respondent No.1.

The petitioner further requested me to allow the petitioner

to utilise my residential address at Kolkata for receiving any
communication from the respondent No.1 regarding the
aforementioned tender which will be communicated and/or re-
routed to the petitioner as Motihari is a rural area in the State of
Bihar and at times letter/postal communication reaches there
late.

5. As a bonafide customer of the Bank of India who desired to

open business in West Bengal and had no address of
communication at Kolkata, I on good faith allowed the petitioner
to use my residential address for purposes of receiving
communications from the Respondent No.1 for the
aforementioned tender purposes only. One or two letters
addressed to the petitioner by the respondent No.1 through my
residence at Kolkata mentioned in the Writ Petition was
redirected by my family members to Motihari which the
 petitioner collected from me at the Motihari Branch of Bank of
India.

6. I further say that the petitioner was never my tenant at my

residence at Kolkata. My younger brother and my family are
the only residence at the said address in Kolkata. There is no
vacant portion in the said property after the occupation of the
same by my brother and my family to let out. The statement
made by the petitioner in the Writ Petition is totally baseless
false and are after thought.”

Ms. Mitra therefore submits that the satisfaction arrived at by

the Hon’ble Single Bench vide its judgment and order dated 9th of

July, 2010 relates to the verification of materials connected to the

application of the petitioner other than the Credit Worthiness

Certificate which is the issue in this writ petition. Ms. Mitra points

out that in view of the admission on affidavit made by the

respondent no.6, being the said B.K. Das, that the three words in

issue namely, “to Rs. 15 lac” were not written by him, prima facie

demonstrate that fraud has been committed which requires to be

further investigated by IOCL.

Having heard the parties and considering the materials on

record this Court arrives at the following conclusions:-

A) That the scope, purport and intent of the solemn judgment of

the Hon’ble Single Bench dated 9th July, 2010 and of the
 Hon’ble Division Bench dated 11th March, 2011 did not cover

the issue of forgery connected to the Credit Worthiness

Certificate in issue in the present writ petition. This Court is

persuaded to accept the submissions of Ms. Meharia that the

two stages of investigation are different. This Court further

finds merit in the stand taken by Ld. Counsel for IOCL that

the affidavits in issue which were the subject matter of the

first investigation and, have been discussed both in the

judgment of the Hon’ble Single Bench dated 9th July, 2010

and the Hon’ble Division Bench dated 11th March, 2011

(supra) are distinct from the issue of forgery raised by way of

the show cause notice impugned in the present writ petition.

B) This Court is further satisfied that the complaint of forgery in

the Credit Worthiness Certificate was separately brought to

the notice of the Vigilance Department of IOCL under the

PIDPIR. Such complaint was investigated by IOCL and the

Motihari Branch of BOI separately approached to confirm the

genuineness of the said Credit Worthiness Certificate. Upon

the confirmation received from BOI, the petitioner was asked

to show cause vide the impugned notice dated 23rd April,

2013.

C) This Court is also required to notice the failure on the part of

the petitioner to take a clear stand qua the show cause notice
since, the petitioner failed to rebut the charge by taking refuge

in the earlier round of litigation culminating in the order of

dismissal of the SLP filed by the said Ashoke Kumar Kundu.

This Court notices that by reply to the show cause notice

dated 23rd April, 2013 the petitioner on 6th May, 2013 called

for documents from IOCL and by a communication dated 10th

May, 2013 the documents were supplied by IOCL to the

petitioner. It is relevant to mention that the petitioner in his

reply dated 6th May, 2013 sought three documents namely, a)

Credit Worthiness Certificate; b) IOCL’s letter seeking written

confirmation from the bank regarding genuineness of the

certificate; and c) the facsimile reply by the Zonal Manager,

Motihari to IOCL dated 12th July, 2010.

By a letter dated 10th May, 2013 the bank supplied the

following documents:-

1) Copy of Credit Worthiness Certificate;

2) Copy of confirmation from BOI dated 12th July, 2010.

In the considered view of this Court the supply of

document no.2 by IOCL vide its communication dated 10th

May, 2013 to the petitioner covers the requirement of the

document nos. b) and c) desired by the petitioner in his reply

to the show cause notice. This Court is of the further

 considered view that the confirmation by the BOI to IOCL

regarding the authenticity of the certificate and its reference to

the demand made by IOCL vide its communication dated 24th

May, 2010, demonstrates that the genuineness of the

certificate was sought for by IOCL and, replied to by the bank.

Therefore, having regard to the above noted facts this Court

does not find that the petitioner suffered from any breach of

the principles of natural justice.

D) This Court also finds that by communication dated 27th May,

2013 the petitioner was reminded by IOCL to clarify the

discrepancies alleged in the show cause notice with the

further reminder that the petitioner is employing dilatory

tactics by seeking additional documents from IOCL although

the issue for consideration is straight forward pertaining to the

use of the three words “to Rs. 15 lac”. This Court is also

persuaded to hold that the petitioner approached this Court at

a pre-mature stage by challenging the show cause notice.

E) This Court is also in agreement with the argument advanced

by Ms. Mitra, Ld. Counsel for the respondent no.6 to the effect

that since the author of the certificate has himself denied

using the three words “to Rs. 15 lac” in the said certificate,

there arises a prima facie presumption of adverse inference

against the petitioner which is required to be carried forward

 to its logical conclusion by IOCL through the issuance of the

show cause notice.

In the opinion of this Court such show cause notice

requires to be answered by the writ petitioner directly without

adopting time consuming tactics and finally, seeking relief on

a misconceived argument that the authenticity of the Credit

Worthiness Certificate stood settled through the judicial

pronouncements of the Hon’ble Single Bench, Hon’ble Division

Bench and confirmation of such pronouncements by the

Hon’ble Apex Court.

F) This Court also notices that the platform of the order obtained

by the petitioner on the 13th of June, 2013 rested on the

ground that the petitioner alleged that his landlord is the

person who initiated the enquiry in respect of the Credit

Worthiness Certificate, stands answered by the affidavit of the

respondent no.6 which has been quoted above in this

judgment. The respondent no.6 has clearly stated that the

petitioner was temporarily allowed to use his residential

address for receiving correspondence from IOCL at Motihari

and, such address was provided by the respondent no.6 to the

petitioner considering his long standing association with the

bank.
 This Court notices that the writ petitioner has denied

the statements of the respondent no.6 with regard to the

nature of use of the residential address of the respondent no.6

at Motihari. However, with regard to the Credit Worthiness

Certificate this Court finds that the petitioner has merely

stated that the said certificate was issued after adhering to the

bank’s lending norms of Rs. 15 lac and the said certificate has

been confirmed to be genuine by BOI vide its communication

from the Branch Manager, Motihari on 30th May, 2013.

In any view of the matter there is no denial by the writ

petitioner of the specific stand taken by the respondent no.6

that the three words in issue were not written by him.

Therefore, this Court is of the considered view that IOCL

correctly proceeded to take the first step for examination of the

issue by issuing the show cause notice dated 23rd April, 2013

and, having failed to receive a complete reply from the

petitioner took steps under Section 45 (b)(i) of the Dealership

Agreement.

G) This Court cannot help but notice that even to the naked eye a

copy of the Credit Worthiness Certificate appearing at page

170 of the writ petition, being Annexure P-21, carries a full

stop after word ‘norms’ following which the next three words

appear “to Rs. 15 lac”, again followed by a second full stop.

 Strangely, the first full stop appears to have been written over

in the copy of the certificate at page 162 of the writ petition

whereas the handwriting, again to naked eye, of the words “to

Rs. 15 lac” in either of the pages is distinctly different.

This Court is required to notice the terms of the

agreement signed between the parties dated 9th of August,

2007 which permit IOCL to raise the issue of forgery under

Clause 45(b)(i) as above. Since this is a dispute touching the

agreement between the parties this Court is of the view that in

the facts of this case the relief of the petitioner lies in the

remedy provided under the agreement, i.e. arbitration.

H) Before parting with this case, this Court cannot help but

notice the certificate dated 30th of May, 2013 purportedly

issued by the Chief Manager of the Motihari Branch, BOI in

favour of the writ petitioner. Such letter merely speaks of the

fact that a certificate was issued on the 15th of December,

2006 by the Motihari Branch in favour of the petitioner

without commenting on the authorship of the three words “to

Rs. 15 lac”. Interestingly, this Court cannot also help but

notice that the word ‘chief’ before the word ‘manager’ has been

spelt incorrectly as ‘cheif’ which, at the level of the manager of

a Nationalised Bank, this Court finds such departure from

 elementary dictionary sense to state the least, surprising with

reference to its exact origins.

In the backdrop of the above discussion WP 16119(W) of

2013 stands dismissed.

CAN 10622 of 2014 stands accordingly disposed of.

Interim order stands discharged.

There will be, however, no order as to costs.

Urgent certified photocopy of this Judgment and order, if

applied for, be supplied to the parties upon compliance with all

requisite formalities.

(Subrata Talukdar, J.)