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TMI Blog2023 (10) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... ided 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Versus Competition Commission of India Ors. Shree Mahuva Pradesh Sahakari Khand Udoyg Mandali Ltd. Versus Competition Commission of India Ors. Sri Sarvaraya Sugars Ltd. Ors. Versus Competition Commission of India Ors. ( Justice Rakesh Kumar ] Member ( Judicial ) And [ Dr. Alok Srivastava ] Member ( Technical ) For the Appellant: Mr. Gautam Shahi , Mr. Narinder Kr. Verma , Advocates For the Respondents : Mr. Udayan Jain , Mr. Raj Surana, Advocates for R-1/CCI Mr. Sridhar Potaraju, Ms. Ankita Sharma, Mr. Aayush, Mr. Rajat Srivastava, Ms. Zeba Zoariah, Advocates Ms. Shama Nargis, Dy Director (Law) CCI JUDGMENT [ Per : Dr. Alok Srivastava , Member ( Technical ) ] 1. The batch of appeals filed under section 53B of the Competition Act, 2002 (in short Competition Act ) which are captioned above are being considered and disposed of by this common judgment. These appeals have been filed by the Appellants assailing the judgment of the Competition Commission of India (in short CCI ) being aggrieved by the Order dated 18.09.2018 (in short Impugned Order ) passed by the CCI in case nos. 21, 29, 36, 47, 48 and 49 of 2013. 2. The appeals in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remitted back to CCI in view of the fact that the CCI had heard the cases by five Members, however, judgement was delivered by only three Members. In such situation it would be necessary to ask Mr. Udayan Jain, learned counsel appearing on behalf of CCI to produce the original record particularly the original order sheet maintained by the CCI to verify whether the contention raised by Mr. Sharma is correct or not. As requested by learned counsel for the parties list this case under the same caption on 1st August, 2023 on top of the list. In the meanwhile, learned counsel for the parties are permitted to file Notes of Written submissions only on aforesaid point alongwith compilation of judgement within three weeks from today and parties may exchange the notes in between them at least one week before the next date of hearing. 5. The bench requested the Learned Counsel for CCI to produce the original record maintained by the CCI for perusal and to also examine the contention made by Mr. M.M. Sharma, Learned Counsel. The bench also decided to hear the parties on the question of compliance to the principle of natural justice in the hearing of the matter by the CCI and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to hear the case on merits. 8. In brief, the case leading up to these appeals is as follows:- An order dated 18.9.2018 was passed by the Learned Competition Commission of India under section 27 of the Competition Act, 2002 imposing penalties on some ethanol producers after finding them guilty of allegations of bid-rigging and cartelization, which was done without defining the relevant market and on the basis of sketchy evidence. As a result, the appellants filed appeals under selection 53(B) of the competition Act challenging the common order dated 18.9.2018, whereby they have been found guilty in indulging in rigging and cartelization and imposed penalties on the Appellants individually. The appellants aggrieved by the Impugned Order filed appeals which are now under consideration of this bench. 9. On the issue of adherence to the principle of natural justice in hearing and passing of Impugned Order by the CCI, Mr. M.M. Sharma, Learned Counsel for Appellant started his arguments by submitting that the matter was heard on various occasions by six members of the CCI, but the final judgment was signed and pronounced by only three members, and therefore, the princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its meeting held on 30.10.2017, decided to direct the DG to furnish a Supplementary Investigation Report with regard to tender process and the analysis for the State of Maharashtra, and when such a report was submitted and considered by the CCI in its meeting held on 7.6.2018, the CCI should have provided an opportunity for oral hearing to the parties, and since such opportunity was not provided to the parties, it has resulted in denial of natural justice to the Appellants, which made the order so passed non est in law. 12. Mr. M.M. Sharma, Learned Counsel for Appellant has referred to the judgment of the Hon ble Delhi High Court in the matter of Mahindra Electric Mobility Limited and Anr. V. Competition Commission of India and Anr., 2019 SCC OnLine Del 8032, wherein it is held that the revolving door policy that enables members to participate in one or the other proceedings of the CCI is not per se illegal. He has argued that the converse of this principle should also be taken as true, meaning thereby that the decision should be rendered by all those who may have participated in the oral hearings, otherwise the sanctity of the order is vitiated. He has contended that the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that after submission of the Supplementary Investigation Report and supply of its copy to the parties concerned, it was incumbent on the CCI to have provided an opportunity of oral hearing to the parties as the Supplementary Investigation Report was like an extension of the preliminary investigation, and at the stage of submission and consideration of first investigation report the parties had been afforded an opportunity to present oral arguments. He has thus contended that CCI failed to adhere to the principle of natural justice as is required under section 36 of the Competition Act, 2002 while considering the Supplementary Investigation Report and therefore, the procedure followed while passing the Impugned Order suffers from this grave shortcoming and is liable to be set aside on this ground. 16. Mr. M.M. Sharma, the Learned Counsel has also argued that the CCI directed the sugar mills to file revenue details generated from supply of ethanol for financial years 2011-12, 2012-13 and 2013-14 in the same order dated 7.6.2018 even though at this stage no decision had been made for imposition of penalty, and such action goes to show that CCI had already made up its mind to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order. Such an inordinate delay in passing the order made it inform as the members would not be able to recall all the oral arguments from their memory and further due to passage of time some members retired which meant that the order was passed by only three members as against five members who heard the case on all the dates, which made the order non est due to such basic infirmities. 18. Mr. Anil Kumar Mishra, Learned Counsel for the Appellant Sir Shadi Lal Enterprises in Competition Appeal (AT) No. 101/2018 has argued that section 36 of the Competition Act requires that the CCI, in discharge of its functions, shall be guided by the principle of natural justice and therefore, each and every proceeding in the consideration of any matter including the passing of the final order should be infused with the principle of natural justice. He has also referred to section 22 of the Competition Act, wherein the modality for holding meetings of the CCI is prescribed, and pointed out to the relevant regulation 3 with regard to holding of meetings i.e. the CCI (Meeting for Transaction of Business) Regulations, 2009 which stipulates how the two types of meetings should be held and the mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. He has pointed out that Hon ble APTEL has held that in doing so, the Central Electricity Regulatory Commission had violated Regulation 62 Central Electricity Regulatory Commission (Conduct of Business) Regulations, 1999 and, therefore, its order was found to be non est in law. 20. The Learned Counsel Mr. Potaraju has also cited the judgment of the Hon ble Supreme Court in the matter of Dakshin Haryana Bijli Vitran Nigam Limited vs. Navigant Technologies Private Limited [(2021) 7 Supreme Court Cases 657], wherein the importance and necessity of recording dissenting opinion in a case has been recognized in case there is a dissenting opinion. He has thus contended that if all the members, who hear the case, do not sign and authenticate the order, the possibility that a member who does not sign or authenticate the order is holding a dissenting view cannot be ruled out. He has emphasized that it is therefore necessary that all the members who hear the case must sign the final order. 21. The Learned Counsel Mr Potaraju has also cited the judgment of the Hon ble Supreme Court in the matter of Anil Rai vs. State of Bihar [(2001) 7 Supreme Court Cases 318], wherein a redressal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified through Regulation 3-A. He has referred to the judgment of the Hon ble Supreme Court in the matter of Zile Singh vs. State of Haryana and Ors. [(2004) 8 Supreme Court Cases 1], wherein it is held that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. He has also referred to the judgment of the Hon ble Supreme Court in the matter of Commissioner of Income-Tax (Central)-I, New Delhi vs. Vatika Township Private Limited, wherein it is held that unless a contrary intention is apparent, a legislation is presumed to not have retrospective operation, and also the dictum that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. 24. In reply, Mr. Udayan Jain, Learned Counsel for Respondent CCI in Competition Appeal (AT) No.86/2018, Competition Appeal (AT) No.92/2018, Competition Appeal (AT) No.97/2018, Competition Appeal (AT) No.99/2018, Competition Appeal (AT) No.104/2018, Competition Appeal (AT) No.3/2019, Competition Appeal (AT) No.10/2019 has argued that the CCI has held that the sugar mills, who participated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that can be applied while examining whether the principle of natural justice has been followed and in case no prejudice has been caused to the delinquent party, the principle of natural justice is understood to be complied with. He has also cited the judgment of Hon ble Supreme Court in the matter of State of U.P. vs. Sudhir Kumar Singh Ors, [2020 SCC OnLine 847], wherein the Hon ble Supreme Court has held that regarding the doctrine of audi alteram partem, a clear distinction has been made between cases where there was no hearing at all and those where there was mere technical infringement of the principle of natural justice. He has contended that the application of principle of natural justice is to be seen with regards to the facts of each case, and in the present case, when the members were not available at time of passing of impugned order, no infringement of the principle of natural justice can be claimed. 27. Mr. Udayan Jain, the Learned Counsel for Respondents has also referred to the judgment of Hon ble Supreme Court in the matter of P.D. Agrawal vs. State Bank of India Ors. [(2006) 8 SCC 776], wherein it is held that there was a gross violation of principle of natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is a necessary corollary that only those who hear should decide. Taking cue from this judgment, Mr. Udayan Jain has argued that when some members who heard the case of sugar mills had retired, the order could only be passed and signed by the members who continued in office and on this account the Impugned Order cannot be said to be invalid. 31. Mr. Udayan Jain, Learned Counsel for Respondents has also cited the judgment of the Hon ble COMPAT in the matter of Lafarge India Limited, Crescenzo Bldg v. Competition Commission of India and Another, 2015 SCC Online Comp AT 1120 to argue that the principle of one who hears must decide was considered in the judgment and after adverting to the Hon ble Supreme Court s decision in the matter of Gullapali Nageswara Rao etc. v. State of Andhra Pradesh and Others (supra), it was held that in any particular case, whether the concerned party has been prejudiced would have to be examined in the light of the facts and circumstances of that particular case and if no prejudice appears to have been caused, it would not vitiate the order. 32. Mr. Udayan Jain has strongly argued that in Mahindra Electric Mobility Limited and Anr. V. Competiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the DG and after consideration of the objections or suggestions obtained in accordance with sub-section 5, if it agrees with the recommendations of the DG, it shall close the matter and pass necessary orders. He has also pointed out that sub-section 7 of section 26 provides power to the Competition Commission to call for further investigation by the DG, if it forms an opinion that further investigation is required. He has further referred to Regulation 21 of the CCI (General) Regulations, 2009 to expand the procedure for enquiry under section 26 of the Competition Act, wherein in sub-regulation (6), Secretary has to, with the approval of the Chairperson, fix the meeting of the Commission within seven days for consideration of the report of DG on further investigation is received. He has thus claimed that the Competition Commission has not erred in any way by not providing an opportunity for oral hearing to the parties, after receipt of the Supplementary Investigation Report, since section 26 of the Competition act and Regulation 21 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CCI may grant an opportunity to the parties to present their case, but it is not obligatory to do so. He has further contended that the judgment in the matter of Mahindra Electric Mobility Ltd. vs. CCI (supra) has held that revolving door policy is a valid policy, and therefore, absence of some members in certain hearings by the Competition Commission or in the signing or pronouncement of order will not invalidate the proceedings or the order. He has further argued that in the same judgment, Hon ble Delhi High Court has held that the absence of some members in certain hearings, and the issue of hearing by a larger body but decision by a similar number may lead to an undesirable situation, but does not lead to any illegality in the proceedings or order. 39. In rejoinder, Mr. M.M. Sharma, Learned Counsel for the Appellant has clarified that adherence to the principle of natural justice in oral hearing, particularly adherence to the principle of one who hear must decide is necessary to rule out any bias against the alleged offender. He has clarified that Regulation 3(3) of the CCI (Meeting for Transaction of Business) Regulations, 2009 lays down the procedure for ordinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted vs. Petroleum and Natural Gas Regulatory Board (Appeal No. 110 of 2020 in the Appellate Tribunal for Electricity) to contend that all these judgments of Hon ble APTEL are very clear that when a larger body heard a case, but the order was either passed by a smaller body or a member did not sign the order, the order stood vitiated. 41. Mr. Anil Kumar Mishra, Learned Counsel for Appellant Sir Shadi Lal Enterprises (in Competition Appeal (AT) No. 101 of 2018) has reiterated in rejoinder when a procedure has been prescribed explicitly in the statute, it should have been followed and further that Mahanagar Gas Limited vs. Petroleum and Natural Gas Regulatory Board (supra) judgment does not support the CCI case, because the Hon ble Delhi High Court merely upheld the validity of revolving door policy, but in the same breath also accepted that abuse of such a practice is possible. 42. Mr. Pankaj Bhagat, Learned Counsel for the Appellants (in Competition Appeal (AT) No.100/2018, Competition Appeal (AT) No.100/2018, Competition Appeal (AT) No.102/2018 and Competition Appeal (AT) No. 104/2018) has re-emphasized the point that seeking of revenue details by the Competition Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduce the following provisions of the Competition Act and Regulations made therein hereunder:- THE COMPETITION ACT, 2002 7. Establishment of Commission (1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the Competition Commission of India . (2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued. (3) The head office of the Commission shall be at such place as the Central Government may decide from time to time. (4) The Commission may establish offices at other places in India. xx xx xx xx 18. Duties of Commission - Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or otherwise; (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers; (i) countervailing buying power; (j) market structure and size of market; (k)social obligations and social costs; (l) relative advantage, by way of contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition; (m) any other factor which the Commission may consider relevant for the inquiry. (5) For determining whether a market constitutes a relevant market for the purposes of this Act, the Commission shall have due regard to the relevant geographic market'' and relevant product market . (6) The Commission shall, while determining the relevant geographic market , have due regard to all or any of the following factors, namely: (a) regulatory trade barriers; (b) local specification requirements; (c)national procurement policies; (d) adequate distribution facilities; (e) transport costs; (f) language; (g) consum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stions referred to in sub section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (7) If, after consideration of the objections or suggestions referred to in sub section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by the Director General or cause further inquiry to be made by in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act. (8) If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act. 27. Orders by Commission after inquiry into agreements or abuse of dominant position. xx xx xx xx (b) impose such pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavit; (d) issuing commissions for the examination of witnesses or documents; (e) requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such of record or document from any office. (3) The Commission may call upon such experts, from the fields of economics, commerce, accountancy, international trade or from any other discipline as it deems necessary to assist the Commission in the conduct of any inquiry by it. (4) The Commission may direct any person: (a) to produce before the Director General or the Secretary or an officer authorized by it, such books, or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the examination of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceed to decide a matter in the absence of the party which does not abide by such timings as per regulation 30. xx xx xx xx 32. Final order. (1) Every order of the Commission shall be signed and dated by the Members including a dissenting note by the dissenting Member, if that be the case. (2) Every order or decision of the Commission shall, as far as practicable, be made within twenty-one working days from the date of conclusion of final arguments. (3) A copy of the order duly certified by the Secretary or such other officer authorized by the Secretary shall be served on the parties to the proceeding as provided in regulation 22 within four weeks of the date of the order. xx xx xx xx 48. Procedure for imposition of penalty under the Act. (1) Notwithstanding anything to the contrary contained in any regulations framed under the Act, no order or direction imposing a penalty under Chapter VI of the Act shall be made unless the person or the enterprise or a party to the proceeding, during an ordinary meeting of the Commission, has been given a show cause notice and reasonable opportunity to represent his case before the Commission. (2) I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeting of the Commission shall be recorded under the superintendence and guidance of the Secretary or by any other officer authorized by the Chairperson. The minutes of each matter taken up during an ordinary meeting shall be given continuous serial number for a particular financial year. 3-A. Coram for meetings of Commission- (1) Subject to the provisions of Section 22 of the Act, the Commission shall set down cases for final hearing after completion of pleadings and during such hearings, coram of the Commission would remain constant and such coram alone would continue to hear and participate in all subsequent proceedings on all hearing dates and would write the final orders. (2) If it becomes impossible to continue the hearings with the same coram, for any reason whatsoever, the matter would be heard afresh with new coram. xx xx xx xx 5. Effect of any irregularity of procedure. No act or proceedings of the Commission shall be invalid merely by reason of any irregularity in the procedure of the Commission not affecting the merits of the case. 46. Section 36 of the Competition Act gives power to the Competition Commission to regulate its procedure, and while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3-A, which though inserted in the Regulations by virtue of notification no. R-40007/6/Reg-meeting/noti./2021-CCI dated 2.3.2021 which became effective from 3.3.2021, has retrospective operation, and therefore, the Impugned Judgment suffers from the lacuna that the same coram did not hear the matter on all the dates and the final order was not signed by all the members who heard the matter. They have also argued that adoption of such a procedure contravenes the principle of one who hears must decide and therefore, the Impugned Judgment is non est in law. 49. In connection with principle of one who hears the case must decide , we note the argument of the Appellants that while five members of the Competition Commission heard the arguments, only three members signed the Impugned Order. While making such a submission, the Learned Counsels for Appellants have submitted that there is a distinct possibility that if all the five members who heard the case had deliberated on the issues of case, the outcome of the case may have been different. 50. In the above connection, the judgment of Hon ble Supreme Court in the matter of United Commercial Bank Ltd. v. Their Workmen [1951 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Andhra Pradesh and Others (supra) has also been cited where Hon ble Supreme Court has ruled that a person who hears must decide and that divided responsibility is destructive of the concept of judicial hearing. 52. In the matter of Mahindra Electric Mobility Limited and Anr. V. Competition Commission of India and Anr. (supra), Hon ble Delhi High Court has deliberated in detail on the procedure for hearing before the Learned Competition Commission of India and observed as hereunder:- 177. Having so concluded, this Court is nevertheless of the opinion that a hearing by a larger body and decision by a smaller number (for compelling reasons or otherwise) does lead to undesirable and perhaps at times avoidable situations. To address this, the court hereby directs that when all evidence (i.e. report, its objections/affidavits etc.) are completed, the CCI should set down the case for final hearing. At the next stage, when hearing commences, the membership of the CCI should be constant (i.e. if 3 or 5 members commence hearing, they should continue to hear and participate in all proceedings on all hearing dates); the same number of members (of the CCI) should write the final o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble APTEL held as under: 22... the work of the Commission which is of a quasi-judicial nature is one of joint responsibility of all Members. The Commission as a body should sit together and the order of the Commission has to be the result of the joint deliberations of all Members of the Commission acting in a joint capacity. All Members of the Commission who heard the matter should sign the order. If the order is not signed by all Members who heard the matter it will be invalid as it will not be order of the Commission. This is in line with the fundamental proposition that a person who hears must decide and divided responsibility is destructive of the concept of judicial hearing. If a Member dissents he must give reasons for the dissent and that shall form part of the order. [Emphasis Supplied] b. In Damodar Valley Corporation v. Central Electricity Regulatory Commission; (2019) SCC OnLine APTEL 40, while four (4) members of the Central Electricity Regulatory Commission heard the matter, only three (3) members signed the order as one of the members of the bench had retired. Hon'ble APTEL held as under: 20. It is the specific case of the learned senior co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. 55. On the basis of the ratio in judgments reproduced above, we find 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. We note that the above-mentioned judgments of Hon ble APTEL 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. 56. From the above noted facts of the present case and the judgments of Hon ble APTEL that are cited earlier in this judgment, it can be inferred that there is not only a strong desirability, but also a legal requirement that all the members who hear the case must deliver/pronounce the Impugned Order and sign and authenticate it. 57. In the present case, we find that one member Justice G.P. Mittal did not participa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a necessary corollary that only those who hear should decide. The decisions of the Supreme Court in Guttapalli Nageswara Rao (supra); Union of India v. Shiv Raj (2014) 6 SCC 564 establish this rule. The ratio of these judgments is that one who hears must decide and violation of this rule will render the final order void. question here is, did anyone who did not hear the complaints decide it? 164. . The record and the tabular chart, listing the members who heard the matters on 05.02.2013 to 08.02.2013, shows that those who participated were Mr. HC Gupta, Anurag Goel, M L Tayal, Ashok Chawla, R Prasad, Justice S.N. Dhingra (Retd) and Ms. Geeta Gouri. On 05.03.2013, when CCI requested for additional information from the informant and the other OEMS, the same members - except Mr. R. Prasad participated; he had retired, in the meanwhile. On 09.05.2013, the same combination (Mr. HC Gupta, Anurag Goel, M L Tayal, Ashok Chawla, Justice S.N. Dhingra (Retd) and Ms. Geeta Gouri) were present. Instead of R Prasad, Mr. Bunker, was present at this meeting. He was not present during the oral submissions and he joined the CCI on 25 March 2013. On 08.08.2013, five equipment manufacturers (OEM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s lead to undesirable and perhaps at times avoidable situations. To address this, the court hereby directs that when all evidence (ie. report, its objections/affidavits etc.) are completed, the CCI should set down the case for final hearing. At the next stage, when hearing commences, the membership of the CCI should be constant (i.e. if 3 or 5 members commence hearing, they should continue to hear and participate in all proceedings on all hearing dates); the same number of members (of the CCI) should write the final order (or orders, as the case may be). This procedure should be assimilated in the form of regulations, and followed by the CCI and all its members in all the final hearings; it would impart a certain formality to the procedure. Furthermore, the court hereby directs that no member of the CCI should take a recess individually, during the course of hearing, or take a break to rejoin the proceeding later. Such walk out and walk in practise is deleterious to principles of natural justice, and gravely undermines public confidence in the CCI's functioning. Once the hearing commences, all members (who hear the case, be they in quorums of 3 or 5 or seven) should continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account alone, on the peculiar facts of the case, as well. 62. We further note that the Hon ble Supreme court has held in the matter of the Anil Rai vs. State of Bihar (supra) the guiding principles regarding timely pronouncement of judgment, which is as hereunder:- 43. Should the situation continue to remain so helpless for all concerned? The Apex Court made an exhortation in 1976 through a judgment which is reported as R.C. Sharma v. Union of India for expediting delivery of judgments. I too wish to repeat those words as follows: (SCC Headnote) Nevertheless an unreasonable delay between hearing of arguments and delivery of judgment, unless explained by exceptional extraordinary circumstances, is highly undesirable even when written or arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. xx xx xx xx 45. Sethi, J. has enumerated them succinctly as follows: (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, 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. 64. We note the judgment of Hon ble COMPAT in the matter of National Insurance Company Ltd. vs. Competition Commission of India (supra) regarding the requirement of one who hears must decide . The relevant portion of the judgment is reproduced below:- 17. The Appellants have sought quashing of the impugned order on the ground of violation of the principles of natural justice. It was stated that, all the members of the Commission and the Chairman were present for the hearing dated 07.04.15, wherein counsel for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Order. The Appellants in the present case have failed to establish any personal interest of the Chairman in the proceedings or how his presence in some deliberations and not being party to the Impugned Order, caused any prejudice to their case. Reference to the judgment of the Supreme Court in the case of A.K. Kraipak (ibid), referred by us in the Lafarge case (ibid) is misplaced as in that case a person who was himself a candidate for selection from the State Service to an All India Service, was a member of the Selection Committee. The Supreme Court was of the view that, though such an interested person may not have participated in the deliberation when his own case was being considered, his bias could have operated in a subtle manner in selection of other persons, including his competitors. Similarly, in the King's Bench decision (ibid), the court was considering challenge to an order convicting a person involved in a collision, of driving in a manner dangerous to public. The presence of Justices' clerk, who was interested in the proceedings, being member of the firm of solicitors representing a client in a civil suit for damages in respect of the same collision, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority, wherein this Court dealt with a case wherein the designated authority (DA) under the relevant statute passed the final order on the material collected by his predecessor-in-office who had also accorded the hearing to the parties concerned. This Court held that the order stood vitiated as it offended the basic principles of natural justice. 20. In view of the above, the law on the issue can be summarized to the effect that the very person/officer, who accords the hearing to the objector must also submit the report/take decision on the objection and in case his successor decides the case without giving a fresh hearing, the order would stand vitiated having been passed in violation of the principles of natural justice. xx xx xx xx 81. The signing of each page by the Chairperson is strongly indicative of the fact that the orders were authored by him and not by any of the six Members, who had heard the arguments on the above noted three dates. During the course of hearing, Mr. Vaibhav Gaggar, learned counsel assisting Mr. Pallav Shishodia, Senior Advocate for the Commission made a statement that by putting initials on each page of the order, the Chairperson had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts have declined to entertain such a challenge. It will always depend upon the nature of the proceedings, the grounds for invocation of such law and the requirement of compliance with the principles of natural justice in light of the above-noticed principles. 69. We note that in the present case the non-compliance to the principle of natural justice is not due to some legal, compelling reason or public interest, but solely due to a faulty, and irrational procedure followed by the Competition Commission which has certainly meant prejudice to the appellants as they were imposed penalty on the basis of such a procedure being followed by CCI. 70. In the present matter, we find that 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. Added to this is also a distinct po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice as was required by section 36 of the Competition Act, 2002. 73. Another important issue raised by the Appellant is that when the Competition Commission considered the matter in its meeting held on 30.10.2017 and directed the DG to make further investigation/analysis and submit a Supplementary Report, five members were present in the hearing. The relevant part of the order dated 30.10.2017 is reproduced below:- 11. In fact, the Opposite Parties during the course of arguments on the DG Reports made a criticism of the DG Reports on this count by arguing that the DG has examined producers of UP leaving out the producers located in Maharashtra. 12. Having considered the DG Reports and the submissions of the parties, the Commission is of considered opinion that having collected the necessary data and investigated into the matter, it was incumbent upon the DG to have analysed the same and to have made its recommendations/ findings in respect of the depots in the State of Maharashtra. 13. On a careful perusal of the DG report, the Commission is of opinion that before proceeding any further in the present matter, it would be appropriate to direct the DG in terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten arguments is laid down. The requirement of adherence to the principle of natural justice as envisaged in section 36 of the Competition Act would require that once suggestions and objections were invited from the opposite parties by the Competition Commission vide its order dated 30.10.2017, and since the reason that the supplementary investigation was directed to be done on the request of the opposite parties, the need for compliance with principle of natural justice certainly required that the opposite parties be granted an opportunity to present oral arguments to buttress whatever objections or suggestions they may have submitted in the matter. Thus, we are of the view that the Competition Commission should have provided an opportunity to the opposite parties (appellants) to present oral arguments when it was considering the Supplementary Investigation Report prepared by the DG, which was not done. 76. Another point made by the Appellant is whether Regulation 3-A of the CCI (General) Regulations, 2009 would have retrospective effect? In this connection, we note that Regulation 3-A regarding coram was inserted by notification dated 2.3.2021. We also note that this inse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the opinion that it is not necessary to look at the issue of retrospective operation of Regulation 3-A, since in the present case we have already formed an opinion that the Impugned Order suffers from illegality of a smaller body of members signing and pronouncing the final order than the body of members that heard the case and the inordinate delay in pronouncing the judgments with both the reasons having struck at the spirit of principle of natural justice. 78. We are, therefore, of the clear view that 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. Further, we are also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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