2016 (7) TMI 1690 - AT - SEBI

Mandation of WTM of SEBI to pass order - Order passed by the WTM of SEBI or not? - validity letter issued by the Chief General Manager when no order passed by WTM of SEBI - HELD THAT - WTM had instructed that a note be prepared and accordingly, a note was prepared and put up for approval of WTM on June 23, 2016. It is further stated in the said affidavit that alongwith the said note, draft letters to be sent out to the appellant were also placed before the WTM of SEBI. The said note as also draft letters were approved by the WTM on June 27, 2016 and, accordingly, letter dated July 8, 2016 was issued to the appellant, thereby communicating the decision of the WTM of SEBI disposing off the representation of the appellant. When questioned as to whether there is any order passed by the WTM of SEBI, counsel for SEBI fairly stated that there is no order passed by the WTM of SEBI. Thus, it is evident that the WTM of SEBI permitted the Chief General Manager to issue a letter to the appellant that the representation made by the appellant has already been disposed off by the WTM of SEBI, when in fact no order was passed by the WTM of SEBI. In these circumstances, it is apparent that the WTM of SEBI sought to represent that he has already passed an order, when in fact there was no order passed by the WTM of SEBI. As per the order passed by this Tribunal 2016 (5) TMI 1610 - SECURITIES APPELLATE TRIBUNAL MUMBAI WTM of SEBI was required to pass an order by June 24, 2016. Accordingly, having heard the appellant on June 21, 2016, the WTM of SEBI was duty bound to pass an order by June 24, 2016. If for any administrative constraints it was not possible to pass an order within the stipulated time, then the WTM of SEBI ought to have sought extension of time, which the WTM of SEBI has failed to do. Instead, the WTM of SEBI resorted to a totally impermissible mode of representing that an order has been passed when in fact no order was passed by him. In such a case, informing the party that an order disposing of the representation is already passed, without actually passing an order, is nothing but an attempt to mislead in the matter. We strongly condemn the irresponsible approach adopted in the matter. Since the WTM of SEBI has not passed any order, we would have directed the WTM of SEBI who had heard the appellant on June 21, 2016 to pass an order immediately. However, we are informed that the said WTM of SEBI is travelling. In these circumstances, we quash the letter issued by the Chief General Manager on July 8, 2016 and direct SEBI to assign the matter to any other responsible WTM of SEBI who shall pass an order on the representation of the appellant within two weeks from today after giving an opportunity of hearing to the appellant. It would be open for such WTM of SEBI to hear the representation of the appellant as also the representation made by the Respondent No. 2 together and pass appropriate order thereon. Since we are distressed with the manner in which the WTM of SEBI has discharged his quasi judicial duties which is highly detrimental to the interests of the securities market, we direct the registry to forward a copy of this order to the Hon ble Finance Minister and also to the Chairman of SEBI for information-we disposed of the appeal in the aforesaid terms subject to payment of costs quantified at ₹ 1 lac to be paid by SEBI to the appellant within one week from today.

Summary

Issues:
1. Failure to pass an order by the Whole Time Member (WTM) of Securities and Exchange Board of India (SEBI) within the stipulated time.
2. Issuance of a letter by the Chief General Manager of SEBI, misrepresenting that an order was passed by the WTM when it was not.
3. Lack of responsibility and misleading conduct by the WTM of SEBI in handling the appellant's representation.
4. Direction by the Securities Appellate Tribunal to quash the letter, assign the matter to another WTM of SEBI, and pass an order within two weeks.
5. Imposition of costs on SEBI for the appellant's inconvenience.

Issue 1: Failure to Pass an Order by the WTM of SEBI
The Tribunal noted that despite being required to pass an order by a specified date, the WTM of SEBI did not do so. The WTM failed to seek an extension of time and instead attempted to mislead by allowing a letter to be issued stating that the representation was disposed of when no actual order was passed. This conduct was strongly condemned as irresponsible and misleading.

Issue 2: Misrepresentation by the Chief General Manager of SEBI
The Tribunal found that the Chief General Manager issued a letter implying that the WTM had passed an order when, in reality, no such order existed. The letter was based on a note prepared by a junior officer and approved by the WTM, but it did not constitute a formal order. This misrepresentation led to confusion and necessitated the Tribunal's intervention to rectify the situation.

Issue 3: Lack of Responsibility and Misleading Conduct by the WTM of SEBI
The WTM of SEBI failed to fulfill the obligation to pass an order within the specified time frame and did not take necessary steps to seek an extension. By allowing the issuance of a letter implying an order was passed when it was not, the WTM engaged in misleading conduct. The Tribunal expressed strong disapproval of this behavior and emphasized the importance of upholding transparency and due process in such matters.

Issue 4: Direction by the Securities Appellate Tribunal
In response to the mishandling of the appellant's representation, the Tribunal quashed the misleading letter and directed SEBI to assign the matter to another responsible WTM. The new WTM was instructed to pass an order within two weeks after providing an opportunity for the appellant to be heard. The Tribunal highlighted the need for proper handling of representations and emphasized the importance of adhering to procedural requirements.

Issue 5: Imposition of Costs on SEBI
Due to the inconvenience caused to the appellant by the mishandling of the case, the Tribunal imposed costs amounting to ?1 lac on SEBI. This decision aimed to address the appellant's unnecessary difficulties resulting from the WTM's actions and underscored the Tribunal's commitment to ensuring accountability and fair treatment in such proceedings.

This detailed analysis of the judgment highlights the issues involved, the Tribunal's findings, and the corrective actions taken to address the mishandling of the appellant's representation by the WTM of SEBI and the Chief General Manager.