w w w . L a w y e r S e r v i c e s . i n



Nilanjana Kundu v/s Bharat Petroleum Corporation Limited & Others


Company & Directors' Information:- BHARAT PETROLEUM CORPORATION LIMITED [Active] CIN = L23220MH1952GOI008931

Company & Directors' Information:- A R C INDIA PETROLEUM PRIVATE LIMITED [Active] CIN = U11202TG2009PTC063249

Company & Directors' Information:- S R PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U23200MH1999PTC122909

Company & Directors' Information:- N. P. PETROLEUM LIMITED [Strike Off] CIN = U23201UP1995PLC018153

Company & Directors' Information:- R H PETROLEUM PRIVATE LIMITED [Active] CIN = U23209MH1996PTC101701

Company & Directors' Information:- K S M PETROLEUM PRIVATE LIMITED [Active] CIN = U01120TZ1978PTC000800

Company & Directors' Information:- A. M. PETROLEUM PRIVATE LIMITED [Strike Off] CIN = U51524MH2014PTC255581

Company & Directors' Information:- S V S PETROLEUM PRIVATE LIMITED [Active] CIN = U51909DL2002PTC116940

Company & Directors' Information:- BHARAT CORPORATION PVT LTD [Strike Off] CIN = U74999CH1946PTC001103

Company & Directors' Information:- INDIA PETROLEUM COMPANY LIMITED [Dissolved] CIN = U99999MH1936PTC002453

    W.P. No. 5663 (W) of 2019

    Decided On, 25 June 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Petitioner: K.K. Bandopadhyay, Saptansu Basu, Sr. Advocates, R.A. Agarwala, R. Dhara, R.K. Gupta, N. Pal, A.G. Mukherjee, Advocates. For the Respondents: Puspendu Chakraborty, D. Sen, Partha Chakraborty, Advocates.



Judgment Text

The petitioner has assailed a communication dated March 5, 2019 of Bharat Petroleum Corporation Limited (B.P.C.L.) by which, B.P.C.L. informed the petitioner that, the candidature of the petitioner for award of retail outlet dealership at Mothbari, Block - Minakha towards Sonakhali RHS on Basanti Highway, District North 24 Parganas, under open category advertised on November 25, 2018, stands cancelled.

Learned Senior Advocate appearing for the petitioner has submitted that, B.P.C.L. issued an advertisement dated November 25, 2018 inviting applications for appointment of retail outlet dealership. The petitioner applied on December 13, 2018. The application was made On-line as the terms and conditions of the advertisement required the application to be made On-line. It also required that, B.P.C.L. authorities would communicate with the petitioner On-line. He has drawn the attention of the Court to the brochure of selection of dealers for regular and retail outlets dated November 24, 2018 and the guidelines on selection of dealers for regular and retail outlets through draw of lots/ bidding process. He has referred Clause 14 C, D and E of the brochure. He has submitted that, Clause 14 E of the brochure requires B.P.C.L. to communicate the status of the application through Electronic Mail and Short Message Services (e- mail/SMS). The e-mail identity of the petitioner as well as the mobile number of the petitioner was provided to B.P.C.L. He has submitted that, Clause 14 E of the brochure requiring communication by e- mail/SMS has to be read to mean that, B.P.C.L. is required to communicate the information by e-mail as well as SMS. According to him, the clause has to be read conjunctively. He has relied upon an unreported decision of the Division Bench rendered in G.A. No. 1800 of 2011 A.P.O.T. No. 261 of 2011 W.P. No. 144 of 2010 (Barun Ghosh v. Goutam Kumar Saha & Ors.) dated September 1, 2011 in support of his contention.

Referring to the facts of the case, learned Senior Advocate appearing for the petitioner has submitted that, the petitioner after having submitted the application On-line on December 13, 2018 received a SMS dated January 11, 2019. The SMS required the petitioner to refer to the e-mail for details. The petitioner checked its e-mail and did not find any e-mail from B.P.C.L. Thereafter, the petitioner made a representation dated January 14, 2019 to B.P.C.L. The petitioner was then informed that the petitioner will receive the e- mail and should keep a watch on the inbox. Even after expiry of 10 days thereafter since the petitioner did not receive any further e-mail in her inbox, the petitioner made a second representation to B.P.C.L. Again B.P.C.L. authorities requested the petitioner to watch her inbox for the e-mail. On February 1, 2019, the petitioner made a representation to B.P.C.L. when, the authorities informed the petitioner that two e-mails dated January 11, 2019 and January 21, 2019 were sent to the petitioner to which, the petitioner did not respond. The petitioner thereafter checked not only the inbox but also the spam mail of the petitioner whereupon, the petitioner found the e- mail dated January 11, 2019 and January 21, 2019 of B.P.C.L. Immediately thereafter, the petitioner by a writing dated February 5, 2019 informed B.P.C.L. that, as the e-mails dated January 11, 2019 and January 21, 2019 of B.P.C.L. were in the spam box of the petitioner, the petitioner was prevented by sufficient cause in not reacting to the requisitions made in the two e-mails within time. The petitioner sought permission to submit the initial security deposit along with required documents at the earliest.

Learned Senior Advocate appearing for the petitioner has submitted that, the petitioner did not ignore the e-mails dated January 11, 2019 and January 21, 2019 voluntarily. The e-mails reached the spam box of the petitioner. It is not the fault of the petitioner that, the petitioner did not notice the two e-mails prior to the date of their discovery. He has relied upon the definition of spam as appearing in the dictionary. He has submitted that, the petitioner should not be penalized for not looking into the two e-mails. He has submitted that, the authorities be directed to allow the petitioner to comply with the requisitions contained in the e-mails dated January 11, 2019 and January 21, 2019.

Learned Advocate appearing for B.P.C.L. has submitted that, the brochure governing the relationship between the petitioner and B.P.C.L. require B.P.C.L. to communicate with the petitioner in the electronic mode. B.P.C.L. issued two e-mails dated January 11, 2019 and January 21, 2019 to the mail identity provided by the petitioner. B.P.C.L. also sent SMS to the petitioner informing the petitioner that, e-mails were sent and that, the petitioner should check the same. B.P.C.L. authorities are not at fault in not making the necessary communications to the petitioner. The selection process is a time bound procedure. Time prescribed in the selection procedure having elapsed by the time the petitioner made the representation dated February 5, 2019, B.P.C.L. authorities were unable to accept the request made by the petitioner. Consequently, B.P.C.L. informed the petitioner about the cancellation of the candidature of the petitioner by the impugned writing dated March 5, 2019. According to him, B.P.C.L. authorities are not at fault in not extending the time for the petitioner to comply with the requisitions under the selection procedure. The petitioner failed to deposit the initial security deposit as also deposit the requisite documents for the B.P.C.L. authorities to assess the candidature of the petitioner. Therefore, according to him, petitioner is not entitled to any relief. B.P.C.L. issued a notice for appointment of regular/rural retail outlet (petrol pump) dealership proposing to appoint retail outlet dealers at various locations in the State of West Bengal. The notice for appointment was published in The Telegraph, Kolkata Edition on November 25, 2018. The notice for appointment stated that the detailed advertisement and brochure are available on the designated website. The petitioner has participated in such selection process. The guidelines on selection of dealers for regular and rural retail outlets through draw of lots/bidding process are applicable to the selection process. Clause 14 of such guidelines prescribes the selection procedure. Clause 14C lays down the advertisement procedure. Clause 14D lays down the cut off date for receipt of applications. It goes on to say that, if an applicant fails to submit his/her On-line application on the due date due to any technical reason whatsoever, the oil company shall not be responsible and no request for subsequent submission of the application will be entertained. Clause 14E deals with application. It prescribes that the application are to be submitted only through On-line mode on prescribed web portal. It requires an applicant to register in the web portal for creating a login identity and password. It also requires an applicant to register for SMS alerts. It states that, the status of the application would be communicated through e-mail/SMS to the e- mail I.D./mobile number provided by the applicant registering on the web portal. The relevant portion of Clause 14E for the purpose of the present matter is as follows:-

"............................

The status of the application would be communicated through SMS/email, to the eligible applicants through the portal www.petrolpumpdealerchayan.in on successful submission of application or can be viewed on the portal www.petrolpumpdealerchayan.in:

i. Acknowledgement of receipt of the application form submitted and acknowledgement of the non-refundable application fee.

ii. Non-refundable application fee receipt.

iii. The list of candidates for the location as priority Group-I, Group-II and Group-III will be available in the portal www.petrolpumpdealerchayan.in. iv. Intimation for the draw of lots/Bid opening date, venue and time.

v. Intimation regarding selection to the successful applicant in Draw of Lots/ Bid opening. vi. Intimation to the selected candidate for submitting required documents (for conducting Land evaluation and Field Verification of Credentials) and remittance of 10% of Security deposit (Initial Security Deposit -ISD) within 10 days from the date of intimation.

vii. In case the candidate does not submit the documents and/or remit 10% of the Security Deposit (Initial Security Deposit), a reminder will be sent with the notice period of another 10 days that in case the required documents are not submitted the candidature is liable for rejection. In case the selected candidate fails to submit the documents and/or remit 10% of the Security Deposit (Initial Security Deposit), within this additional 10 days, his candidature will be rejected under intimation.

.................................."

Clause 14G requires all registered applicants to apprise themselves of the status of the applications on the designated web portal.

The petitioner has applied for new retail outlet dealership for the location Mothbari. B.P.C.L. in its affidavit in opposition has stated that, the petitioner was the sole eligible candidate in respect of such location.

The guidelines require B.P.C.L. to intimate the petitioner as to the status of the application through e-mail/SMS to the e-mail id/mobile number provided by the petitioner while registering on the designated web portal. The petitioner has admitted receipt of SMS dated January 1, 2019. The SMS dated January 11, 2019 is as follows:-

"This is Further to your selection.

Pl submit Documents/ISD within 10 days. Pl refer your email for details.

Jan 11, 2019, 11:39 PM"

The SMS dated January 11, 2019 requires the petitioner to submit documents/ISD within 10 days. It also requires the petitioner to refer to the e-mail for details. The petitioner was therefore put on notice by B.P.C.L. as to the status of the application of the petitioner in terms of Clause 14E by SMS as well as e-mail. The petitioner did receive the e-mail dated January 11, 2019. According to the petitioner, the e-mail reached the spam box and therefore, the petitioner did not notice the same. Clause 14E of the guidelines requires B.P.C.L. to communicate the status of the application through SMS/e-mail which B.P.C.L. did to the petitioner. B.P.C.L. is not at fault in the e-mail reaching the spam box of the petitioner. An e-mail reaches a spam box of a recipient on the recipient arranging his/her e-mail facility in such manner that specified e-mails reach the spam box. Both the parties in the selection process are required to exercise due care. Petitioner ought to have exercised due care to ensure that, e-mails sent by B.P.C.L. did not reach the spam box. In any event, the petitioner could have checked the spam box to find out receipt of the e-mail after receiving the SMS on January 11, 2019. The second e-mail dated January 21, 2019 also reached the spam box of the petitioner. The abject failure of the petitioner in exercising due and reasonable care while dealing with the application does not vest the petitioner with any right to have an extension of the time to comply with the requisitions.

The dictionaries relied on behalf of the petitioner explains the word 'spam' to mean an irrelevant or unsolicited message sent over the Internet, typically to the large number of users, for the purposes of advertising, phishing, spreading malware, etc. Essentially, spam is an unwanted e-mail usually an advertisement. However, the internet facility enjoyed by any user, allows the user to classify mails into different categories. An internet user, has the option of classifying mails as spams or as regular e-mails. In any event, the internet user has the option of checking the spam mail box to find out if, any of the mails lodged therein are relevant for the user. It is the duty of the user to check his mail box for both spam mail and otherwise. In the present case, the petitioner as an applicant in the selection process failed to exercise due care that the petitioner is expected to exercise in normal circumstances in relation to her application particularly when, the process of application and the process of informing the petitioner as to the status of the application are prescribed to be done On-line.

It is the contention of the petitioner that, the word SMS/e-mail, has to be understood that these are in conjunction with each other. In other words, B.P.C.L. was obliged to inform the petitioner both by SMS as well as by e-mail. B.P.C.L. not having done so, B.P.C.L. failed to discharge its obligations in informing the petitioner within time. Therefore, the petitioner cannot be faulted in not responding to the e- mails within time. As noticed above, the guidelines particularly Clause 14E requires B.P.C.L. to inform the petitioner as to the status of the application through SMS/e-mail. Punctuation " / " was interpreted in Barun Ghosh (supra). The interpretation was in the context of Clause 23 of West Bengal Public Distribution System (Maintenance and Control) Order, 2003 as amended by the subsequent notification dated November 18, 2004. Clause 23 of the 2003 Order require the authorities to declare vacancy of a distributor through public notification/advertisement. In the facts of that case, although, two newspaper advertisements were published, it was an admitted fact that public notification in the Official Gazette was not made. In the facts of that case, the punctuation " / " was interpreted to mean that, both public notification and advertisements were mandatory in terms of Clause 23 of the 2003 Order. In that case, declaration of vacancy in respect of a distributorship was involved. Such declaration was required to made public. In such context, the Court found that, the public at large should be notified of such vacancy. Such was the requirement of Clause 23 of the 2003 Order. In such context, particularly when the public at large was statutorily required to be notified, the Court interpreted the user of the punctuation " / " to mean that, the authorities were required to publish notification in the Official Gazette as well as advertised the vacancy in newspapers. In the present case, the guidelines require the Oil Company to inform the petitioner. Public is not involved in the process of the Oil Company informing an applicant. Oil Company is not required to inform the public at large through the SMS/e-mail. It is limited to the applicant. Barun Ghosh (supra) has also noted that, the punctuation can be interpreted differently in different context. In my view, the punctuation " / " will take the contour that the context require. The present context does not mandate B.P.C.L. to issue both SMS as well as an e-mail to the applicant. Any one of the two modes would be sufficient. What is required is that the applicant should be put on notice as to his/her status of the application. B.P.C.L. in the facts of the present case discharged such an obligation.

It is the contention of the petitioner that, Clause 14E (vii) requires the candidature to be rejected under intimation. According to the petitioner, su

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ch Clause should be read to mean that, a notice of default is required to be given by B.P.C.L. whereupon, the petitioner will have an opportunity to remedy the breach, if any. With respect, Clause 14E (vii) cannot be interpreted as contended on behalf of the petitioner. The selection process is time bound. Selection process requires B.P.C.L. to inform the applicant as to the status of the application. It requires B.P.C.L. to discharge obligations within specified time. In the facts of the present case, B.P.C.L. did inform the petitioner as to the status of his application. Such intimation was given within the time stipulated. Petitioner had sufficient time to react to such intimations. The petitioner was required to submit documents and remit 10 per cent of the security deposit within the time stipulated. Petitioner was given a notice with regard thereto. Petitioner failed to react to such notice. Petitioner was given a reminder to such effect on her failure. Petitioner failed to react to the second e-mail dated January 21, 2019. Therefore, Clause 14E (vii) stands complied with. Petitioner was given sufficient notices as stipulated to comply with the requisitions. Petitioner despite receipt of such notices, failed to react thereon. The contention that the e-mails reached the spam box and therefore, the petitioner was prevented by sufficient cause from not reacting cannot be accepted. In view of the discussions above, no relief can be granted to the petitioner. W.P. No. 5663 (W) of 2019 is dismissed. No order as to costs. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.
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