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2023 (10) TMI 485 - AT - Indian LawsConstitution of Competition Commission - coram of the commission - binding nature of final judgment, which was signed and pronounced by only three members against six members who began hearing the matter - requirement to provide opportunity of oral hearing to the parties while considering the Supplementary Investigation Report of the DG - principles of natural justice. Whether the body of the Competition Commission, which started oral hearing in the matter, should have remained constant, and whether the final judgment, which was signed and pronounced by only three members against six members who began hearing the matter, is legally in order? Whether the Competition Commission should have provided an opportunity of oral hearing to the parties while considering the Supplementary Investigation Report of the DG, and also at the stage of imposition of penalty under section 27 of the Competition Act the Competition Commission was required to provide an opportunity of oral hearing to the Opposite Parties regarding the quantum of penalty? HELD THAT - It is correct that when the final judgment/order in the present matter was passed by the Competition Commission on 18.9.2018, Mr. S.L. Bunker, Member and Mr. D.K. Sikri (Chairperson) had retired and therefore, it was not possible for them to sign and authenticate the Impugned Order, and in such a situation, only Mr. Sudhir Mital, Chairperson, Mr. U.C. Nahta, Member and Mr. Augustine Peter, Member signed the Impugned Order. It is noted that Justice G.P. Mittal, who was a member on 18.9.2018 (the date of the Impugned Order), did not sign and authenticate the Impugned Order. It is noted that Justice G.P. Mittal did not hear the case from 2.8.2017 onwards, and so we may assume that since he did not hear the case in full, he did not participate in decision making and sign and authenticate the Impugned Order. On the basis of the ratio in judgments in Global Energy Private Limited v. Karnataka Electricity Regulatory Commission Ors and Damodar Valley Corporation v. Central Electricity Regulatory Commission, it is found that the possibility of a different opinion being held by the body of members hearing the case is distinctly possible if all the members were to jointly apply their mind and come to a conclusion - It is noted that the above-mentioned judgments of Hon ble APTEL (Global Energy Private Limited and Damodar Valley Corporation) unambiguously lay down that the final judgment in a matter should be rendered by the same set of members as those who heard the case. In the present case, it is found that one member Justice G.P. Mittal did not participate in four hearings, and therefore, he may have chosen not to sign the Impugned Order, even though he continued to be a member on the date the Impugned Order was pronounced - It is also considered that Justice G.P. Mittal, Member did not form part of the coram , who heard the case and therefore, the other five members heard the case on all the dates of hearings before the final order was pronounced. In view of the ratio in the judgments of Hon ble APTEL (Global Energy Private Limited and Damodar Valley Corporation), it would be definitely legally required that all these five members should sign and authenticate the Impugned Order. From two judgments in matters of Anil Rai vs. State of Bihar 2001 (8) TMI 1330 - SUPREME COURT and Ram Bali v. State of U.P. 2004 (4) TMI 532 - SUPREME COURT , it is quite clear that the issue of delayed delivery/pronouncement of judgment is a serious issue on which Hon ble Supreme Court had occasion to apply is mind. Regulation No. 32 of the CCI (Meeting for Transaction of Business) Regulations, 2009 also stipulates that the Competition Commission may deliver final judgment within 21 days from the date the Competition Commission reserved the matter for final judgment. Therefore, it is trite to infer that the matter of timely delivery/pronouncement of judgment is an important one and therefore, even in the CCI (General) Regulations, 2009 a specific stipulation has been made under sub-regulation 2 of Regulation 32. Of course, this sub-regulation also contains a rider which states that the order or decision of the Competition Commission shall be made within 21 working days from the date of conclusion of final arguments, insofar as it is practicable. In the present matter, the final order was delivered after almost 13 months from the date the matter was reserved for orders, after conclusion of final arguments. This period is definitely a very long period, and it may be entirely possible that the members, who did not sign the judgment may have held a different point of view, or that, when they participated in collective deliberation and discussion while preparing the final order, the final order may have gone in a different direction - the long delayed delivery of final order/judgment was completely overlooking the desirability of pronouncing final judgment. All the above analysis point to the necessity, much rather the desirability of timely pronouncement of judgment, and also the necessity of the same set of members, who heard the final arguments, to be party in the decision making and then sign and authenticate the final judgment. The delay of about 13 months in the pronouncement of the Impugned Order so that only three members could sign and authenticate it instead of five members who heard the case on all the dates leads to two infirmities in the Impugned Order. The first infirmity that the same coram of members, who heard the matter, did not sign the order was a major infirmity. It was compounded by the fact that there was inordinate delay in the pronouncement of the final order - the Impugned Order was not pronounced by following the spirit of the principle of natural justice as was required by section 36 of the Competition Act, 2002. The Impugned Order does not comply with the requirement of adherence to the principle of natural justice for the reason that the coram of CCI that heard the final arguments did not pass the necessary orders within reasonable period of time, and by the time, the orders were pronounced in the case, one member was not present in at least four later hearings and two members had demitted office and therefore they did not participate in the decision making nor sign and authenticate the final order. Thus the delay in pronouncing the impugned order also resulted in serious infirmity in that one who hears must decide was not followed in letter and spirit - the Impugned Order does not satisfy the basic tenet of adherence to the principle of natural justice which was ingrained in section 36 of the Competition Act. The Impugned Order set aside - appeal disposed off.
Issues Involved:
1. Adherence to the Principle of Natural Justice 2. Opportunity for Oral Hearing on Supplementary Investigation Report 3. Delayed Pronouncement of Judgment 4. Retrospective Application of Regulation 3-A Summary: Adherence to the Principle of Natural Justice The appeals challenge the order of the Competition Commission of India (CCI) on grounds of non-adherence to the principle of natural justice. The core issue is whether the principle of "one who hears must decide" was followed, as the final judgment was signed by only three members, whereas the case was heard by five members. The tribunal emphasized that all members who hear a case must sign the final order to ensure joint responsibility and avoid any perception of bias. The tribunal referred to various judgments, including United Commercial Bank Ltd. v. Their Workmen and Gullapali Nageswara Rao v. State of Andhra Pradesh, to support the necessity of this principle. Opportunity for Oral Hearing on Supplementary Investigation Report The tribunal found that the CCI did not provide an opportunity for oral hearing to the parties after the submission of the Supplementary Investigation Report. This omission was deemed a violation of the principle of natural justice as laid down in Section 36 of the Competition Act and Regulation 29 of the CCI (General) Regulations, 2009. The tribunal held that the CCI should have allowed the parties to present oral arguments on the Supplementary Investigation Report and on the issue of penalty. Delayed Pronouncement of Judgment The tribunal noted the inordinate delay of 13 months in pronouncing the final judgment after reserving the matter for orders. This delay was found to be contrary to the principle of timely delivery of judgments as emphasized by the Supreme Court in Anil Rai v. State of Bihar. The tribunal held that such a delay could affect the members' recollection of the case details and impact the final decision, thus violating the principle of natural justice. Retrospective Application of Regulation 3-A The tribunal considered whether Regulation 3-A of the CCI (Meeting for Transaction of Business) Regulations, 2009, which mandates a constant coram for hearings, could be applied retrospectively. While the tribunal acknowledged that Regulation 3-A was inserted following a directive from the Delhi High Court, it concluded that it was unnecessary to decide on its retrospective application. The tribunal found the impugned order invalid due to the violation of natural justice principles, irrespective of Regulation 3-A. Conclusion The tribunal set aside the impugned order due to non-adherence to the principle of natural justice, the failure to provide an opportunity for oral hearing on the Supplementary Investigation Report, and the delayed pronouncement of judgment. The matter was remanded to the CCI for fresh hearing with an appropriate coram, ensuring adherence to natural justice principles. The tribunal also directed the release of FDRs deposited by the appellants.
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