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Sri S.Kaleem Basha, S/O. Sri Abdul Mazee Vs. The Hindustan Petroleum Corporation Limi - Court Judgment

SooperKanoon Citation
CourtAndhra Pradesh High Court
Decided On
Judge
AppellantSri S.Kaleem Basha, S/O. Sri Abdul Mazee
RespondentThe Hindustan Petroleum Corporation Limi
Excerpt:
honble sri justice p.naveen rao writ petition no.38119 of 2012 26-11-2014 sri s.kaleem basha, s/o. sri abdul mazeed, aged 27 years, occu:business, r/o. h.no.14-49,c-1, saibabapet, nandikotkur, kurnool district. petitioner the hindustan petroleum corporation limited, rep.by its general manager, 17, jamshedji tata road,mumbai and others.. respondents counsel for the petitioner: sri t.s.praveen kumar counsel for the respondents:1. sri thoom srinivas, standing counsel for respondents 1 to 3, 2)sri o.manohar reddy, counsel for respondent no.4 3) sri c.prakash reddy counsel for respondent no.5 : ?. cases referred:1. air1963sc4042. air1967sc295(1) 3. (2003) 3 scc1864. (2004) 3 scc5535. 2012 (3) ald443(db) honble sri justice p.naveen rao writ petition no.38119 of 2012 order: on 13.09.2011,.....
Judgment:

HONBLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.38119 of 2012 26-11-2014 Sri S.Kaleem Basha, s/o. Sri Abdul Mazeed, Aged 27 years, Occu:Business, R/o. H.No.14-49,C-1, Saibabapet, Nandikotkur, Kurnool District. Petitioner The Hindustan Petroleum Corporation Limited, rep.by its General Manager, 17, Jamshedji Tata Road,Mumbai and others.. Respondents Counsel for the petitioner: Sri T.S.Praveen Kumar Counsel for the Respondents:

1. Sri Thoom Srinivas, standing counsel for respondents 1 to 3, 2)Sri O.Manohar Reddy, counsel for respondent No.4 3) Sri C.Prakash Reddy counsel for respondent No.5 : ?. Cases referred:

1. AIR1963SC4042. AIR1967SC295(1) 3. (2003) 3 SCC1864. (2004) 3 SCC5535. 2012 (3) ALD443(DB) HONBLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION No.38119 of 2012

ORDER

: On 13.09.2011, Hindustan Petroleum Corporation Limited (HPCL) issued paper advertisement in daily newspapers for enlistment of dealers for sale of retail outlet products at various locations in the erstwhile State of Andhra Pradesh. One of the locations notified was Nandikotkur town in Kurnool District, which is shown at Sl.No.105 of the said notification. Petitioner and 4th respondent responded to the notification. In the selections conducted by the respondent-corporation, petitioner secured 86.84% out of 100 marks and 4th respondent secured 88.94%. In the selection list drawn by the respondent corporation, petitioner stood No.2 and 4th respondent as No.1.

2. Alleging that 4th respondent does not have the experience, which is one of the requirements and that experience certificate produced by the 4th respondent was fake, petitioner lodged complaint on 28.12.2011. In the complaint, petitioner also alleged that he was Graduate in Bachelor of Technology, whereas 4th respondent only passed 10th standard examination and, therefore, he should have been awarded more marks on the question of educational qualifications. He also alleged that petitioner was not properly interviewed by the interview committee. The third candidate also lodged a complaint. His grievance was that he was granted only one mark towards experience, far less marks as compared to his eligibility on business ability and he was entitled for awarding of two marks on overall assessment.

3. On 12.01.2012, petitioner was informed that Sri V.L.Chouty, Chief Manager (Finance) of South Central Zone was appointed to investigate into the complaint of the petitioner and Petitioner was requested to furnish any additional information to substantiate his claim within 30 days. The Inspecting Officer enquired into the allegations made by both the candidates and submitted his report on 09.08.2012. The report shows that petitioner was awarded 15 marks for the educational qualification, whereas 4th respondent was awarded 10 marks. With reference to the interview, he was informed that three members committee interviewed and based on the marks awarded by the individual members, average of the said marks was taken and credited to his account. With reference to his allegation that 4th respondent did not have the experience and the certificate produced by her was fake, the report says that enquiry was made with the Proprietor of Prems Pure Fuels, Kurnool, in person and he has confirmed again in writing that experience certificate was issued by him and that Mrs.P.Satya Prabha worked at the outlet.

4. Based on the report, on the same day, order was passed holding that the allegations of the petitioner are not established. The report and the order dated 09.08.2012 was forwarded to the petitioner vide letter dated 16.08.2012. Petitioner assails, in this writ petition, the said decision of the respondent corporation.

5. With the consent of the learned counsel appearing for respective parties, the writ petition is disposed of finally.

6. Heard Sri T.S.Praveen Kumar, counsel for petitioner, Sri Thoom Srinivas, standing counsel for the respondents 1 to 3, Sri O.Manohar Reddy, counsel for the respondent No.4 and Sri C.Prakash Reddy, counsel for the respondent No.5.

7. Learned counsel for the petitioner contended that the experience certificate produced by the 4th respondent is a bogus certificate. The 4th respondent hails from respectable family and she is a home maker and could not have worked in petrol retail outlet as a Supervisor. Thus, a false certificate was generated only to gain advantage in the selection process. He further contended that no proper enquiry was held. The Investigating Officer has not verified the relevant records. He has only orally ascertained about the certificate issued earlier and obtained written letter from him about the certificate issued by the 5th respondent, whereas the records of 5th respondent were not verified to ascertain whether 4th respondent has actually worked as claimed by the 4th respondent.

8. Learned counsel for the petitioner submitted that the 5th respondent outlet is governed by the Andhra Pradesh Shops and Establishments Act, 1988 (for short, the Act). As per the definition of employee provided in Section 2(8) of the Act, employee includes apprentice and it is mandatory for the employer to maintain a register of employees working with the outlet in accordance with Section 68 and Rule 29 of the Rules framed there under. As admitted by the 5th respondent, the name of the 4th respondent is not reflected in employment register. The 5th respondent also admitted that the 4th respondent was not paid pay and allowance and engagement by the 5th respondent was treated as voluntary to gain experience. This would show that 4th respondent never worked with 5th respondent. Learned counsel further submitted that no material is shown as proof that 4th respondent was working with the 5th respondent to gain experience as Supervisor. He, therefore, contended that the 4th respondent produced fake certificate. If only proper verification was done by the respondent corporation the truth would have come out. He further submitted that Petitioner was not put on notice when enquiry was conducted. On this ground alone, the entire exercise of the respondent corporation is liable to be set aside.

9. Sri Thoom Srinivas, standing counsel appearing for respondents 1 to 3 submitted that as per the guidelines for selections and notification for enlistment of dealers, what is required is only a declaration of the experience gained by the person and enclosure of document in support of such experience. The 4th respondent has produced certificate issued by the 5th respondent showing the experience gained by the 4th respondent as Supervisor by the 5th respondent. On verification, 5th respondent asserted that the certificate was given by him. He has also given in writing confirming the certificate issued by him. Learned counsel, therefore, contended that it cannot be said that the certificate produced by the 4th respondent was fake. In view of the assertion by the 5th respondent that he issued the certificate, there was no occasion for the respondent corporation to doubt the correctness of the certificate.

10. Learned standing counsel further submitted that the selection of dealership outlet is governed by the brochure for selection of dealers for regular and rural retail outlets revised and operated w.e.f. September, 2011. As per para 19(b) of the guidelines, no procedure is envisaged giving opportunity to the complainant while conducting investigation. Such provision was incorporated in the earlier guidelines. The same is deleted in the revised guidelines. If the corporation agrees with the substance of the complaint and the result would be affecting the candidate already empanelled in the merit list, the effected person is entitled to be given opportunity of hearing before taking a decision. He therefore submitted that there is no requirement of putting the complainant on notice while investigating into the complaint. The nature of the investigation was only to ascertain the correctness of the complaint to the satisfaction of the respondent-corporation. He therefore submitted that there is no error committed by the respondent corporation in conducting investigation on the allegations made by the petitioner and having found that there was no merit in the allegation, decision was communicated to the petitioner and there is no error in the said decision warranting interference by this Court. 11 Sri O.Manoher Reddy, counsel, appearing for 4th respondent contended that as per the advertisement, the candidate is required to state that he has experience in sales and supervision and he should enclose relevant certificates. In accordance with the advertisement, the 4th respondent has enclosed certificate issued by the 5th respondent holding that the 4th respondent worked with the 5th respondent between January, 2009 to June, 2010 as Sales Supervisor and during the said period, she has gained sufficient experience in sales and supervision. It was voluntary service rendered by her to gain experience and no remuneration was paid by the 5th respondent. Having satisfied with the work and conduct of the 4th respondent, 5th respondent issued the certificate of experience and the same was enclosed to the application submitted by the 4th respondent.

12. He further stated that as contended by the 5th respondent, 4th respondent worked for experience and 4th respondent not being a regular employee on pay rolls, it was not necessary for the 5th respondent to reflect the name of the 4th respondent in employment register and merely because name of the 4th respondent is not reflected in the employment register, the same is not fatal on the issue of the experience gained by the 4th respondent. Except for making bald allegation, no contra evidence is produced by the petitioner to allege that the 4th respondent did not work as Sales Supervisor in the 5th respondent outlet to gain experience. When the petitioner makes specific allegation that 4th respondent did not have experience, the burden lies on the petitioner to substantiate his allegation.

13. Learned counsel further submitted that initial allegation made by the petitioner was that certificate filed by the 4th respondent along with the application form regarding experience gained was fake. Therefore, what was required to be verified by the respondent corporation was whether the certificate was genuine and was issued by the competent person. In the enquiry it was found that the said certificate is not a fake certificate. The person who issued the certificate has authenticated and he has also put in writing that certificate issued by him earlier is valid. In the counter-affidavit filed in this writ petition also, the 5th respondent asserted that the 4th respondent has worked with the 5th respondent. He further submitted that it is not permissible for the petitioner to make new allegations when the same was not contended before the original authority. Petitioner has to confine in this writ petition to the original allegation and cannot expand the scope of enquiry in the writ petition filed under Article 226 of the Constitution of India.

14. Learned counsel for the petitioner relied on following decisions: i) The State of Orissa and another vs. Murlidhar Jena ; ii) Barium Chemicals Ltd. and another vs. Company Law Board and others ; iii) Cellular Operators Association of India and others vs. Union of India and others and iv) ABL International Ltd. and another vs. Export Credit Guarantee Corporation of India Ltd. and others 15. Sri O.Manohan Reddy, counsel for 4th respondent relied on the following decisions: i) Lakshmi Narayana Puli vs. Indian Oil Corporation Ltd., Hyderabad and another ii) Order of this Court in W.P.No.14221 of 2013, dated 02.04.2014 16. As seen from the narration of facts, the difference between the petitioner and 4th respondent is 2.10%. Therefore, there is hot contest on the issuance of experience certificate. If the petitioner succeeds in establishing that 4th respondent did not have the experience and certificate produced by her is a fake certificate, she stands to loose four marks and in such an event, petitioner becomes the number one meritorious candidate.

17. To appreciate the rival contentions, it is appropriate to look into relevant provisions. The relevant provisions in Andhra Pradesh Shops and Establishments Act are Sections 2(1), 2(8) and 68. Sections 2(1), 2(8) and 68 read as under:

2. Definitions :- In this Act, unless the context otherwise requires- (1) apprentice means a person who is employed whether on payment of wages or not, for the purpose of being trained in any trade, craft or employment in any establishment; . . (8) employee means a person wholly or principally employed in, and in connection with, any establishment and includes an apprentice and any clerical or other staff of a factory or industrial establishment who fall outside the scope of the Factories Act, 1948; (Central Act, 63 of 1948) but does not include the husband, wife, son, daughter, father, mother, brother or sister of an employer or his partner, who is living with and depending upon such employer or partner and is not in receipt of any wages; 68. Maintenance of registers and records and display of notices, etc., :- (1) Subject to the control of the Government an employer shall maintain such registers and records and display such notices, as may be prescribed. All such registers and records shall be kept, and all such notices shall be displayed on the premises of the establishment to which they relate. (2) Every employer shall, on demand produce or cause to be produced for inspection by an inspector all registers, records, and notices required to be kept by or under this Act. (3) Every employer shall submit such returns relating to his business, in such manner, within such period, and to such authority as may be prescribed. (4) Every employer shall give an order of appointment to his employee in the establishment before such employee joins the service and shall also furnish a copy of such order to the Inspector having jurisdiction over the area, within three days of issue of each such order: Provided that in case of an employee in the service at the commencement of this Act, the employer shall give such order of appointment within a period of three months from the date of such commencement.

18. Employee as defined in Section 2(8) is inclusive and covers all types of employment in the establishment including apprentice. As per Section 2(1) read with Section 2(8) of the Act, Apprentice is a person, employed whether on payment of wages or not, for the purpose of being trained in any trade, craft or employment in any establishment. Section 68 deals with maintenance of registers, records and display of notices etc. Section 68 of the Act mandate employer for maintenance of registers, records and display notices (sub-section (1)); on demand produce or cause to be produced for inspection of all registers, records and notices (sub-section (2)); to give an order of appointment before such employee joins and shall furnish such copy to the inspector having jurisdiction over the area (sub-section (4)). In exercise of power under Section 71(1) of the Act, the AP Shops and Establishment Rules, 1970(the rules) are made. Rule 29 of the Rules prescribe procedure of maintenance of records as per forms appended to the Rules. Rule 30 of the Rules prescribes form of appointment. Various forms are appended to the Rules. Form XXII is the register of employment. Form XXVI is form of appointment. Form XXVII prescribes quarterly returns to be filed. In this form, in column 8, it is specifically provided that the employer should disclose the number of unpaid helpers.

19. Use of the word include would enlarge scope of the definition (Greater Bombay Vs. Indian Oil Corporation Limited reported in 1991 Supp. 2 SCC18. The word include is very generally used as word of extension. When used in interpretation clauses, it seeks to enlarge the meaning of the words or phrases occurring in the body of the statutes. The word Employee as used in the Act covers all categories of employees working in whatever capacity including an apprentice and an honorary service.

20. Strouds judicial dictionary, the word apprentice is defined as any legal acceptance of apprentice is, a person bound to another for the purpose of learning his trade, or business, the contract being of that nature when the master teaches and other serves the master with the intention of learning.

21. In the instant case, the 5th respondent outlet is governed by the provisions of the Act. As specifically averred by the respondents 4 and 5, the 4th respondent joined the 5th respondent organization to gain experience that means the 4th respondent joined the 5th respondent for learning the skills of sales and supervision over the employees. Thus, at the most, the employment of 4th respondent can be classified as Apprentice. Any employment in the establishment governed by the A.P. Shops and Establishments Act has to be in accordance with the provisions of the Act. Thus, it is mandatory for the fifth respondent to issue appointment order irrespective of nature of appointment and has to include the name of the person in the employment register maintained by the outlet.

22. Merely because the 4th respondent did not claim salary, it cannot give a wholesale right in the proprietor of the retail outlet to ignore the statutory mandate and claim to have engaged a person as Sales Supervisor for a period of more than one year without an order of appointment and without reflecting the person in the relevant records. As evident from the pleadings, no such appointment was issued and the name of 4th respondent is not reflected in the statutory registers and in the periodical declarations required to be filed by the 5th respondent. Furthermore, no material is brought on record to show that 4th respondent worked in the 5th respondent outlet. When statutory mandate is clear, burden lies on the respondents 4 and 5 to prove that the 4th respondent has, in fact, worked to gain experience and merely because name of the 4th respondent is not reflected in the employment register, the experience gained by her cannot be wiped out. The certificate issued by the Proprietor of 5th respondent is not supported by any material on record.

23. It appears to be an after thought on the part of the Proprietor of 5th respondent to support the certificate issued by him by contending that as the service of 4th respondent was voluntary and was to gain experience, no salary was paid and her name was not reflected in the record. Further more, as seen from the relevant columns of the application form, applicant was required to give full details of sales experience and experience in supervising the employees. In other words, person must have sufficient experience in sales and supervision. It is not denied by the 5th respondent that there were other persons engaged by the 5th respondent dealing with the sales and supervision of the outlet. It is not stated in what capacity the 4th respondent worked with the 5th respondent and how the experience was gained by the 4th respondent in the matter of sales and supervision of the employees. In the above analysis, it cannot be said that the grievance of the petitioner that 4th respondent did not have the experience as claimed and the certificate issued by the 5th respondent is not valid.

24. The selections are governed by the brochure for selection of dealers for regular and rural retail outlets between September, 2011 and 20th May, 2014. Relevant paragraphs are 16 and 19 (b).

25. Para-16 of the Brochure for Section of dealers prescribes norms for evaluating the candidates. In sub-para (a), tabulated statement is shown on awarding of marks on various parameters. Sub-para (b) deals with the allocation of marks on various parameters. Total marks on various parameters are 100. As per the table in para (a), for experience four marks are prescribed. In the table in para (b), against column of experience, it is prescribed that if the experience is with retail trade of petroleum products, marks to be awarded would be upto four marks. In the last column of the table, it is indicated that based on furnishing of documentary evidence, along with the application, to establish the relevant experience in Managerial/supervisory capacity for one year, as on date of application, would qualify for full marks.

26. The relevant paras of the application form enclosed to the notification reads as under: Para 6. ?.?.?.?. ?.?.?.?.?.?.?.?./?.?.?.?.?.?. ?.?.?.?.?.?. ?.?.?.?.?. ?. ?.?.?.?.?.?. ?.?.?.?.?.?.?. ?.?.?.?.?.?.?.. (Do you have experience in business/sales ?.).?.?.?.?. ?.?.?.?.?.?. ?.?.?.?.?.?.?.?.( enclose additional sheets) Para 7. ?.?.?.?. ?.?.?.?.?.?.?.?.?.?. ?.?.?.?.?.?.?.?.?.?.?.?.?. ?.?.?.?.?.?. ?.?.?.?.?. ?. ?.?.?.?.?. ?.?.?.?.?.?. ?.?.?.?.?.?.?. ?.?.?.?.?.?.?.. (Do you have experience of supervising the employees?.).?.?.?.?. ?.?.?.?.?.?. ?.?.?.?.?.?.?.?. (enclose additional sheets) 27. The scheme of selection would indicate that lot of weight is given to experience and is not an empty formality. When petitioner made specific allegation that 4th respondent did not have the experience and submitted a fake certificate, it was incumbent upon respondent-corporation to investigate into this allegation, more particularly with reference to the records of the 5th respondent outlet. The complaint given by the petitioner was not duly enquired into by the respondent corporation as expected by them.

28. The relevant portion of the complaint of the petitioner dated 20.12.2011 reads as her experience certificate is also fake. In the affidavit filed in support of the writ petition, petitioner contended that 4th respondent did not work with the 5th respondent and the certificate produced is contrary to the record and 4th respondent did not have experience in sales and supervision and the experience certificate is invented only for the purpose of securing selection as a dealer of the retail outlet.

29. The dictionary meaning of word fake is 1) prepare or make something specious, deceptive or fraudulent. For example to take a report showing non existing profits; 2) conceal the defects of or make appear more attractive, interesting, valuable, etc., usually in order to deceive; 3) to pretend, simulate; to fake illness. For example, I do not know the job, but I can take it; 4) to trick or deceive while making a fake statement. Thus, the allegation of the petitioner that certificate produced by the petitioner is fake has to be seen in wider context. It cannot be confined only to the production of fake certificate. Thus, even if the certificate is issued by a competent person and the certificate produced by the applicant, is genuine certificate, but still the issue of whether the person was entitled to have such certificate was required to be gone into and the allegation of fake is comprehensive enough. Except for ascertaining from the proprietor of the 5th respondent regarding the issuance of certificate, no further verification was made by the investigating officer on the genuineness of the work experience gained by the 4th respondent. There is no explanation forthcoming as to why the records were not verified. It is safe to assume, in the facts of this case, that the respondent corporation was not acting in a fair manner to find out the truth. When state larges are sought to be conferred on any person, it is necessary to verify the eligibility strictly as per the guidelines. The requirement of experience has relevance in functioning of the retail outlet. If the retail outlet is not managed by the dealer properly, it directly affects the finances of the respondent corporation and also public for whose benefit the outlet is proposed, would suffer. Thus, public interest requires a through verification of eligibility.

30. It is not sufficient just to ascertain from the Proprietor of the 5th respondent outlet regarding the certificate issued by him. It is expected that the investigating officer knows that the 5th respondent is governed by the A.P.Shops and Establishments Act; as all petroleum retail outlets are governed by said Act or some other more stringent law. Admittedly, the 5th respondent maintains service register of employees and in the said register, the name of the 4th respondent is not reflected. In the absence of proper record the respondent corporation ought to have ascertained basis to show that 4th respondent has worked with the 5th respondent.

31. In the absence of any other proof of such employment and as the name of the 4th respondent was not reflected in the employment register, it cannot be said that allegation of the petitioner that the 4th respondent has never worked with the 5th respondent and that the experience certificate filed by her is a fake certificate is not valid.

32. It is settled principle of law that in exercise of power of judicial review this Court can hold a decision of an instrument of State as illegal if the Court is of the opinion that the same was irrational, improper and there is impropriety.

33. In State of Orissa (supra), Supreme Court held that if it is shown that the findings recorded by the Administrative Authority are not supported by any evidence, the High Court would be justified in setting aside the said findings. The said case was concerning the service dispute, but the decision would equally apply to the facts of this case.

34. In Barium Chemicals Limited (supra), Justice Shelat, in his judgment, holds as under:

60. Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.

35. Two decisions relied upon by the learned counsel for the 4th respondent are regarding cancellation of the selection of candidates on the ground that the experience certificate produced by them was not valid. In the case of Lakshmi Narayana Puli (supra), the person, who alleged to have given the experience certificate in favour of the candidate, stated that he was only appointed as supervisor on temporary basis and, therefore, not on the rolls. Having found that the person did not have the experience, the selection in favour of the said candidate was annulled. The said decision of the respondent corporation is upheld by this Court. Poleni Yadaiah (WP No.14221 of 2013) is also a case where the claim by the candidate was held to be not valid as the proprietor of the retail outlet on whose name the experience certificate alleged to have been given stated that he did not give that certificate. Thus, in both cases, the validity of the certificate was disowned by the person who claimed to have issued the certificate. The above decisions have no application to the facts of this case.

36. Para 19 of the Brochure reads as under:

19. Grievance/complaint redressal system : (b) When a decision is taken to investigate the complaint, the investigation will be done by one Senior Officer of HPCL. In case, it is found after investigation of the complaint that marks awarded by the dealer selection committee to the complainant and/or any empanelled candidate(s) are getting changed resulting in change in Merit Panel, the competent authority of HPCL will write a letter to the candidate(s) effected by change in Merit Panel, through registered post, mentioning the reasons for such change in Merit Panel. A candidate aggrieved by the above letter can reply to the said competent authority of HPCL within 15 days of receipt of such a letter. The competent authority of HPCL will examine the response of such an aggrieved candidate, if any, along with the finding after investigation of the complaint and pass a speaking order after giving due opportunity to the complainant. 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 as under: (a) In case the selection process for a location was found to be not in accordance with the laid down guidelines resulting in wrong selection of first empanelled candidate, the merit panel will be cancelled and all the candidates who have appeared for the original interview only will be called for the re-interview. (b) In case the dealer selection was done as per laid down guidelines and complaint against the first empanelled candidate is established, action will be taken to cancel the selection of the first empanelled candidate and issuance of LOI to the next candidate in merit panel. Similar action will be taken in case of established complaint against second empanelled candidate also. (c) If complaint is established against all the empanelled candidates, the location will be re-advertised if it is viable.

37. Paragraph 19 does not provide for giving an opportunity of hearing or conducting investigation in the presence of the complainant. Even the provision in earlier guidelines did not provide for such mechanism. Earlier guidelines provided due opportunity to the complainant after the enquiry and before passing an order on the complaint, that is now deleted. Thus, under the new guidelines giving an opportunity to the complainant before passing an order is not contemplated. Since, there is no other mechanism to substantiate the allegation and giving an opportunity before passing an order is not contemplated in the new guidelines, fairness requires that complainant should be put on notice of such enquiry and enquiry be conducted in his presence. Even the affected person also should be provided an opportunity. Providing fair opportunity must be read into guideline No.19(b). The very object of providing grievance redress mechanism before dealership is awarded is to ensure that proper selection is made. Not providing an opportunity to represent at the time of enquiry may not ensure conducting of fair and impartial enquiry and would defeat the very object of such mechanism and case on hand is the clear example. Erroneously, petitioner was not put on notice before conducting the enquiry.

38. For all the aforesaid reasons, the order impugned herein is set aside. The writ petition is allowed. The respondents 1 to 3 are directed to delete the marks awarded to 4th respondent under the experience column and redraw the merit list for awarding the Retail Dealership Outlet at Nandikotkur. Such exercise shall be completed as expeditiously as possible, preferably within four weeks from the date of receipt of copy of this order. There shall be no order as to costs. Miscellaneous petitions if any pending in this writ petition shall stand closed. __________________________ JUSTICE P.NAVEEN RAO Date :26.11.2014


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