2019 (3) TMI 2059 - HC - Companies Law

Prayer for a direction to the respondents 1 and 2 to consider the reply given by petitioner to the SCN - Violation of principles of natural justice - HELD THAT - When the petitioner has given reply dated 03.01.2019 giving detailed reasons, the same has to be considered on merits by passing a reasoned order, therefore, recording the submission made by the learned Standing Counsel appearing for respondents 1 and 2 that the reply will be considered. The writ petitions are allowed and the respondents 1 and 2 are directed to consider the reply given by the petitioner, on merits and pass a detailed order within a period of four weeks from the date of receipt of a copy of this order.

Summary

Issues:
Petitioner seeking direction to consider their reply and pass necessary orders.

Analysis:

The writ petitions involved in this judgment were filed by the petitioner requesting the respondents to consider their reply dated 03.01.2019 and issue necessary orders. The petitioner, a part of the Cognizant group of companies and a prominent IT consultancy service provider in India, received a show cause notice from the Deputy Registrar of Companies, Tamil Nadu, regarding certain discrepancies. The petitioner promptly responded with a detailed explanation within the specified time limit. Subsequently, the petitioner received a notice from the first respondent containing charges based on allegations by the second respondent, to which the petitioner replied on 03.01.2019, providing clarifications to the first respondent. The petitioner expressed concerns that the respondents might proceed without duly considering their detailed reply, prompting the petitioner to seek a direction for the respondents to review their response.

The petitioner's counsel cited a previous order by the Court in similar circumstances, emphasizing that the issuance of a show cause notice signifies the initiation of proceedings related to negligence, default, or breach of duty, but not necessarily criminal action. The decision to pursue criminal proceedings should be based on factual findings resulting in a final order after considering the reply to the show cause notice. The first respondent was required to pass a reasoned order addressing two key aspects: the merit concerning alleged negligence or default by the officer and the decision to proceed under criminal law. This process was deemed mandatory under Section 463(2) of the Companies Act, 2013, with the Court's role limited to determining whether the officer acted honestly and reasonably after negligence was established by the first respondent.

Considering the detailed reply submitted by the petitioner, the Court directed respondents 1 and 2 to pass a detailed order after evaluating the response on its merits within four weeks from the date of receiving a copy of the order. The judgment highlighted the necessity for a reasoned decision supported by reasons when contemplating criminal action, ensuring that the officer concerned is informed and served with the final decision before any potential criminal proceedings are initiated. The Court emphasized the importance of following due process and communicating decisions effectively to uphold procedural fairness and protect the rights of the parties involved.