9911796707
TMI Blog2013 (11) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion would not be rendered unfair or unreasonableness or arbitrary in case no notice or hearing to the affected party is given before directing further investigation under sub section (7) of section 26 of the Act. In fact, even an accused in a criminal case is not entitled to a hearing before a Magistrate passes an order for further investigation in exercise of the powers conferred upon him by sub section (8) of section 173 of Code of Criminal Procedure. The person against whom an information is given or a reference is made to the Commission in terms of section 19 of the Act cannot be placed on a footing higher than that of an accused in a criminal trial. Regulation 41(5) of the Competition Commission of India (General) Regulation, 2009 confers upon the Commission or the Director General, to direct evidence by a party to be led by way of oral submissions and if deemed necessary or expedient grant an opportunity to other party or parties, as the case may be, to cross examine the person giving evidence. Thus, the opportunity to cross examine the witness is to be given to the opposite party when a party before the Commission or the Director General is allowed to lead evidence by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Butane and Propane. The respondent No.3 submitted an information petition to the Commission, alleging that the petitioner-company had created a dominant position in terminalling services and abused its dominance by setting up of blender facility by the informant and charging exorbitantly for the services being provided by it. It was also alleged that the petitioner before this Court was threatening to discontinue the terminalling as well as bypass services to respondent No. 3, unless exorbitant charges were paid to it. The Commission considered the matter in its meeting held on 28.12.2011 and decided to refer the matter to Director General for investigation. The findings submitted by the Director General, has re- produced in the impugned order dated 01.07.2013 were as under: "7. The findings of the DG are briefly given below: (a) The relevant product market comprised of the upstream terminalling services and the downstream terminalling services. The relevant geographic market was the Vishakhapatnam Port. The relevant market under section 2(r) of the Act was stated to be the "upstream and downstream terminaling services at the Vishakhapatnam Port'. (b) The OP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng required by the Commission, the respondent No. 2 submitted interrogatories and also sought discovery and production of certain documents from the petitioner and other witnesses examined during investigation by the Director General. The Commission noted that the witnesses of the petitioner had given testimony in respect of several technical and safety concern aspects, but the respondent No. 3 was not granted an opportunity to cross-examine those witnesses and, therefore, the testimonies of these witnesses and submissions made by the petitioner regarding several aspects had gone unrebutted. The Commission was of the view that informant/respondent No. 3 should have been allowed to cross-examine the witnesses so that a complete picture was available in respect of the safety and technical aspects raised by the petitioner. The Commission felt that cross-examination would have been brought out the genuineness of the concerns and would also have given an opportunity to respondent No. 3 to show as to whether the concerns expressed by Director General in his report were real or false or exploded out of proportion. The Commission was also of the opinion that the informant/respondent No.3 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General. 7. If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint." It would thus be seen that neither sub-section (1) provides for any opportunity of hearing to the person against whom the reference is made or information in terms of Section 19 is received nor does sub-section (7) provides for any such hearing to such a person, before further investigation is directed by the Commission. The learned senior counsel appearing for the petitioner, however, contended that since sub-section (5) requires the Commission to invite objections or suggestion from "the parties concerned", it would be necessary for the Commission to invite objections or suggestions in respect of the report of the Director General where it is recommended that there was no contravention of the provisions of the Act, not only from the informant, but also from the person against whom the information was given to the Commission. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the contention that the said sub-section envisages notice not only to informant, but also to the person against whom the information is given or reference is made. The definition of the expression "party" given in Competition Commission of India (General) Regulations, 2009, therefore, cannot be used for the purpose of interpreting sub-section (5) of Section 26 of the Act. 7. Sub-Section (1) of Section 26, which enables the Commission to direct investigation by Director General on its finding a prima facie case, came to be considered by Supreme Court in Competition Commission of India vs. Steel Authority of India and Another (2010) 10 SCC 744 and the following view taken by the Apex Court in this regard is relevant: "When such information is received, the Commission is expected to satisfy itself and express its opinion that a prima facie case exists, from the record produced before it and then to pass a direction to the Director General to cause an investigation to be made into the matter. This direction, normally, could be issued by the Commission with or without assistance from other quarters including experts of eminence. The provisions of Section 19 do not sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Causa and audi alteram partem." 9. As indicated earlier, the Supreme Court clearly held in Steel Authority of India Ltd. (supra), that no notice is required to be given to the informant or the affected party before the Commission forms an opinion as to whether a prima facie case exits from the record produced before it or not. If the law does not mandate issue of notice to the affected party before directing investigation to be made by the Director General, there would be no reason to imply such a notice before directing further investigation in exercise of the powers conferred upon the Commission under sub section (7) of the said Section. As far as the affected party is concerned, there is no difference between direction for investigation or direction for further investigation, since any further investigation by the Director General would only be in continuation of the investigation carried out earlier by it. 10. Though, the principles of natural justice do necessitates hearing the affected party before a quasi-judicial or even an administrative decision which adversely affects his interest is taken, the order directing further investigation cannot be said to be an order preju ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
