SUPPLY OF UNDER-WEIGHT LPG CYCLINEDERS

Newspapers have been intermittently reporting cases of under-weight LPG cylinders being supplied to the consumers by the government companies through the distributors appointed by them. Some such reports appeared in the media during Nov. 2005. Since it is a chronic problem, COMMON CAUSE took up the matter with the Govt. of NCT of Delhi vide its letter dated 9 th Dec. 2005. The Govt. of NCT of Delhi was, inter alia, requested to intimate why the officials at the bottling plants of Indian Oil Corporation were let off with a meagre fine despite the malpractices being of grave nature; the officials should have been prosecuted to serve as a deterrent for others.

The reply received from the Controller (Legal Metrology), Govt. of NCT of Delhi simply informed that Section 65(1) of the standards of Weights & Measurements (Enforcement) Act, 1985 provides for compounding of such acts by imposing a penalty to be credited to the State Govt. The reply of the Controller (Legal Metrology) was not found to be satisfactory keeping in view the grave fraud being committed on the consumers and also the fact that the said Act has also a provision under Section 64 for summary trial of such offences. Further, Section 65 provides for initiation of prosecution and compounding could have been done even after initiation of prosecution after IOC would have explained things to the utmost satisfaction of all concerned. Yet over-riding all these options, the option of compounding was exercised. The Controller (Legal Metrology) was, therefore, requested vide letter dated 16 th Jan. 2006 to intimate the reasons under which the option of compounding was adopted instead of prosecution of officials responsible for supply of under-weight LPG cylinders.

COMMON CAUSE did not receive any reply from the office of the Controller (Legal Metrology), Govt. of NCT of Delhi. It was, therefore, considered appropriate to file a Writ Petition in the High Court of Delhi. The Writ Petition 4048 of 2006 is reproduced below:-

IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY CIVIL JURISDCTION)

CIVIL WRIT PETITION NO.4048OF 2006

In the matter of :

COMMON CAUSE

A Registered Society)

5, Institutional Area,

Nelson Mandela Road,

Vasant Kunj, New Delhi-110070

Through its President,

Shri Vikram Lal Petitioner

VERSUS

1. Government of NCT of Delhi,

Delhi Government Secretariat,

ITO Complex, New Delhi 110002

Through its Chief Secretary. Respondent No. 1

2. Office of the Controller of Weights & Measures,

Govt. of NCT of Delhi, 117-118, C Block,

Vikas Bhawan, New Delhi

Through its Controller. Respondent No. 2

3. Indian Oil Corporation,

IOC Bhawan,

Connaught Place

New Delhi-110001

Through its Chairman Respodent No. 3

A PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF MANDAMUS AND/OR ANY OTHER APPROPRIATE WRIT/ ORDER/DIRECTION CALLING UPON THE RESPONDENTS TO SHOW CAUSE WHY DELINQUENT OFFICIALS OF INDIAN OIL CORPORATION AFTER COMMITTING SUCH GRAVE FRAUD ON THE CONSUMERS WERE NOT PROSECUTED AS PER THE PROVISIONS OF LAW FOR PROSECUTION AS PROVIDED IN THE STANDARDS OF WEIGHTS AND MEASURES (ENFORCEMENT) ACT, 1985 TO SERVE AS A DETERRENT TO UNSCRUPULOUS OFFICIALS AND SUPPLIERS AND TO SAFEGUARD THE INTEREST AND RIGHTS OF CONSUMERS.

The Hon'ble Chief Justice and His Lordship's Companion Justices of the High Court of Delhi at New Delhi..

The Petitioner abovenamed

MOST RESPECTFULLY SHEWETH :

1. That the Petitioner is a Society duly registered under the Societies Registration Act, 1860 and is engaged in taking up various common problems of the people for securing redressal thereof. The Petitioner has an established locus standi in its capacity as a bonafide public interest organization for taking up matters of general public importance. The Petitioner is submitting the present public interest Petition for consideration of this Hon'ble Court.

2. That corruption is even prevalent in Public Sector Undertaking. The Indian Oil Corporation, a Fortune 500 company, which is also declared as one of the `Navaratnas' as per the declaration of the Government of India, is also not free from the vice of corruption. The Indian Oil Corporation, hereinafter referred to as IOC, is also a very important part of the country's infrastructure and the lifeline of the community's transportation, trade and industry and the economy as a whole.

3. On 24.11.2005 the Indian Express reported that a 27 years old IMM graduate Mr. Manjunathan Shanmugham who was working as Manager with the joint IOC had been killed for ordering the shut down of an IOC Petrol Pump in his area for allegedly selling adulterated fuel. Although the above-mentioned fact does not have a direct bearing on the issue that is being brought through this Petition but it definitely highlights the level of malpractices and the nexus between top officials of public sector undertaking and the mafias. True copy of the said Report dated 24.11.05 is annexed hereto and marked as Annexure P-1 .

4. That the Times of India on 26.11.2005 again reported that raids were conducted in two LPG bottling plants by the Weights and Measures Department in Delhi. A large number of under-weight cylinders were seized. Although the bottling plant is owned and operated by the IOC, surprisingly the senior manager of the plant and the supervisor staff of the IOC responsible for suppressing these acts of the bottling plant who were all involved in the fraudulent practice of supplying under-weight cylinders were neither prosecuted nor called to account by the Controller of Weights and Measures. The matter was closed with a small fine of Rs.90,000/ on the IOC. In effect, the case was not dealt with the seriousness it deserved and the entire episode was treated as a minor lapse. A true copy of the said report dated 26.11.2005 is annexed hereto and marked as Annexure P.2

5 . The Times of India further reported on 28.11.2005 that one resident of I.P.Extension, New Delhi could not ignite the burner with the new LPG cylinder she installed. It was found out that the Indane cylinder contained only water. The aggrieved person although got a replacement but the supplier blamed it on IOC. A true copy of the above Report dated 28.11.2005 is annexed hereto and marked as Annexure P.3.

There may be many such incidents which have occurred in the past but were kept under wraps and resultantly not reported by the media. Therefore, the respondents herein may be directed to produce records of such cases and action taken report during the last three years as it would lend assistance to this Hon'ble Court in efficaciously disposing of this matter.

6. From the facts mentioned above it can be reasonably concluded that there is rampant corruption within the IOC, an infrastructural utility of the country as mentioned above. In spite of this it is surprising that the Respondents did not view the case in the seriousness it deserved and it washed its hands off from such fraud by paying by paying only Rs. 90,000/- (Rupees Ninety Thousand only).

7. That the Petitioner being a public interest organization with the motive to protect interests of the consumers sent a letter to the Respondent seeking explanation as to why IOC was let off so leniently in view of the above submissions. A true copy of the said letter dated 12.12.2005 is annexed hereto and marked as Annexture P.4

8. That in response to the Petitioner's letter a reply was received from the respondent stating that the compounding was made as per Section 65(1) of the Standards of Weights & Measures (Enforcement) Act, 1985. It was further stated that considering the provisions of the compounding under sub-rule 1 and 3 of Section 65 of the above mentioned Act it was necessary to compound the offence of the IOC as provided in the Act instead of referring it to the Court. A true copy of the said reply dated 23-12-2005 is annexed hereto and marked as Annexure P.5

9. In view of the reply as stated above it is pertinent to refer to the Statement of Objects and Reasons of the Standards of Weights & Measures (Enforcement) Act, 1985 . The statement of Objects and Reasons clearly states that this Act will not only provide for the enforcement of Standards of Weights and Measures but also provide for better protection to the consumers by ensuring metrological accuracy in commercial transactions, periodical specifications, inspections in use, specifications after repairs and registration of users which would go a long way in protecting the interests of the consumers. It further states that the Act that was in existence prior to the passing of the Standards of Weights and Measures (Enforcement) Act, 1985, did not confer any right on the aggrieved consumer or recognized consumers associations for filing complaints by taking cognizance of such complaints by the user. Accordingly it was proposed to amend clause (a) of Section 63 of the Act to confer right on the aggrieved consumer or recognized consumers organization in the enforcement of this Act.

10. Keeping in view the objects and reasons as stated above the action of the Respondents is grossly vitiated by malafide. Furthermore, keeping in view the submissions made above, the reply of the Respondents are not found to be satisfactory. Therefore, the Petitioner again sent a notice dated 16.1.06 seeking further clarifications but no reply to this letter has been received till date. A true copy of the said letter dated 16.1.2006 is annexed hereto and marked as Annexure P.6

11. It is pertinent to note here the provisions of Sections 51, 64 and 65 of the Standards of Weights and Measures (Enforcement) Act, 1995:

Section 51: Penalty for contravention of section 33, (1) Whoever manufactures, distributes Packs, sells or keeps for sale of offers or exposes for sale, or has in his possession for sale, any commodity in packaged form, shall unless each such package conforms to the provisions of the SWM (Ent.)Act, 1983 and the rules made thereunder, read with section 33, be punished with fine which may extend to five thousand rupees, and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine.

2) whoever manufactures, packs, distributes or sells, or causes to be manufactured, packed, distributed or sold any commodity in packaged form, knowing or having reason to believe that the commodity contained in such package is lesser in weight, measure or number than the weight, measure or number, as the case may be, stated on the package or label thereon, shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both and, for the second or subsequent offence, with imprisonment for a term which may extend to five years and also with fine.

Section 64: Summary trial of certain offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under section 36, section 38, section 39, section 40, section 41, section 42, section 45, section 51, section 52 of sub-section (3) of section 72 may be tried summarily.

Section 65: Compounding of offences. (1) Any offence punishable under section 39, 40, 41 ,42 ,44 ,45, 46, 47, 48, 51, 52, 54 or section 59 or any rule made under sub-section (3) of section 72, may either before or after the institution of the prosecution, be compounded, by the Controller or such other officer as may be authorized in this behalf by the Controller, on payment, for credit to the State Government, of such sum as the Controller or such other officer may specify:

Provided that such sum shall not, in any case, exceed the maximum amount of the fine which may be imposed under this Act for the offence so compounded.

12. It is noteworthy to refer to the provisions of Section 64 which provides for a summary trial of certain offences including an offence committed under Section 51 of the Standards of Weights & Measures (Enforcement) Act, 1985. Furthermore, Section 65 (1) also provides in that the compounding by a Controller or an Official may be made either before or after institution of prosecution. However, the Respondent herein chose to override the provisions of the Sections 64 & 65 partly and concentrated only on compounding which is malafide on the face of record. It is evident that the option of compounding could have been exercised even after institution of prosecution after IOC would have explained the things to the utmost satisfaction of all concerned which further should have been communicated to all concerned as a part of transparency measures Yet overriding all these options, the option of compounding was exercised. It is surprising that the Respondent herein did not initiate any proceedings against the erring officials of the IOC in respect of their committing such a grave fraud on consumers.

13. This Petition is made bonafide in public interest.

14. That the Petitioner has not preferred any other Petition in any Court or in the

Supreme Court of India.

P R A Y E R S

In the circumstances as stated above it is most humbly prayed that this Hon'ble

Court may be pleased to :

a) issue a writ of mandamus or any other appropriate writ, order or direction calling upon the Respondents to show cause as to why prosecution proceedings were not initiated against the delinquent officials of I.O.C. as per provision of law, and they were let off with meagre fine;

b) issue a writ mandamus or any other appropriate writ directing the respondents to produce records of cases of lapse and malpractices detected in the supply of L.P.G, cylinders and action taken in this regard during the last three years;

c) issue a writ of mandamus or any other appropriate writ, order or direction calling upon the Respondents to strengthen their monitoring and control system to check the prevalent menace of supply of under-weight L.P.G. cylinders and to initiate prosecution of defaulting officials/suppliers as a first step to serve as a deterrent to the unscrupulous persons to safeguard interest of consumers, and not to resort to hurried closure of such cases by taking recourse to compounding and imposition of meagre penalties;

d) Grant any further or other order or orders as deemed fit by this Hon'ble Court in public interest.

It is prayed accordingly.

Petitioner.

Through

ADVOCATE FOR THE PETITIONER

New Delhi.

Dated:

July-September 2006

SUPPLY OF UNDER-WEIGHT LPG CYCLINEDERS

Vision

Mission

Objective