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TMI Blog2024 (8) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... . The brief background of the case need to be noticed for deciding the appeal filed by the Appellant: (i) A Company Petition No.71/241-242/PB/2020 was filed by the Union of India, Ministry of Corporate Affairs with regard to affairs of Delhi Gymkhana Club Limited. The Union of India in CP No.71/241- 242/PB/2020 filed petition under Section 241(1) of the Companies Act, 2013 alleging affairs of the Company being held in a manner prejudicial to the public interest. (ii) The Appellant herein had been appointed as Secretary of the Club from 12.04.2018 to 11.04.2021. On the date of filing of the CA, the Appellant was arrayed as Respondent No.18 in the Section 241 Sub- section (1) application filed by Union of India. (iii) In CP No.71/241-242/PB/2020, an interim order was passed by the Tribunal dated 26.06.2020 stating that General Committee (GC) of the Club shall not construct or further construct on the site and it shall not make any policy decisions. Appeals were filed against interim order dated 26.06.2020 before this Tribunal. (iv) During the pendency of the appeal, the General Committee of the Club issued a Show Cause Notice to the Appellant dated 27.07.2020. In the meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -88/2023 and CA-34/2024 were applications filed by the Appellant, order passed on which applications dated 05.04.2024 is the subject matter of this appeal. (ix) The Tribunal on 20.04.2023 passed order in different IAs including CA-88/2023. Company Appeal (AT) No.112 of 2023 has been filed by the Appellant challenging order dated 20.04.2023, which appeal was disposed of by this Tribunal on 10.08.2023. This Tribunal taking view that CA-88/2023 is still pending before the Tribunal, appeal cannot be entertained, observed that in view of the fact that application has been filed by the appellant under Section 218, Companies Act, 2013, the Tribunal shall endeavour to dispose of the application at early date and the appeal was disposed of accordingly. In the disposed of appeal Company Appeal (AT) No.112 of 2023, IA No.194 of 2024 was filed by the Appellant, which was disposed of by this Tribunal on 11.01.2024 observing that 26.01.2024 is date fixed in CA-88/2023 before the Tribunal and requested the Tribunal to dispose of the application on the said date and in any view of the matter not later than 30 days. (x) Appellant has filed CA-34/2024 making various prayers including the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 24.07.2024, both the parties have submitted their written submissions. 4. Appellant appearing in person challenging the order dated 05.04.2024 submits that inspite of the order of this Tribunal passed on 10.08.2023 and 11.01.2024, NCLAT has not decided CA-88/2023 filed by the Appellant for protection under Section 218 of the Companies Act, 2013. It is submitted that the NCLT has violated Rule 121 and 150 of the NCLT Rules, 2016. It is submitted that inspite of letter dated 20.09.2022 by Government of India holding appointment of new Secretary of the Club void ab-initio, the NCLT has blocked the Central Government's orders. It is submitted that the application filed by Appellant for protection under Section 218 of the Companies Act, 2023 has not been decided whereas Appellant was entitled for protection and he has not been appointed as Secretary of the Club by non-decision of application CA-88/2023 and new CA 34/2024 which has prejudiced the Appellant and dues of Rs.52 Lakhs which were audit qualified has also not been paid. It is submitted by the Appellant that in Para 37 to 49 adverse observations have been made against the Appellant ignoring the PM security breaches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel submits that the Appeal deserves to be dismissed. 7. We have considered the submissions of learned counsel for the parties and perused the record. 8. The Appellant questions the order dated 05.04.2024 passed by the Tribunal in two CAs i.e. CA-88/2023 and CA-34/2024. We need to first notice the reliefs sought by the Appellant in the appeal including interim relief, which is s follows: "RELIEFS SOUGHT: In view of facts mentioned, facts in issue, questions of law and grounds, the Appellant respectfully prays this Hon'ble Appellate Tribunal may be pleased to: a) Allow present appeal and set aside the order dated 05.04.2024 passed by Ld. NCLT in CA88/2023 and CA-34/2024; b) Impose extraordinary costs on Respondents for abuse of the law and corruption cover up; c) Direct for investigation of Rs. 9 Crore Sect-8 company public funds spent in hearings, objected by shareholders and Auditors in AGMs. d) Pass any order as this Hon'ble Appellate Tribunal may deem fit in the interest of justice." 9. Prayers in the appeal itself indicated that only issue for consideration is with regard to CA-88/2023 and CA-34/2024. Before we proceed further, we need to notice the prayers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 provides as follows: "Section 218. Protection of employees during investigation (1) Notwithstanding anything contained in any other law for the time being in force, if- (a) during the course of any investigation of the affairs and other matters of or relating to a company, other body corporate or person under section 210, section 212, section 213 or section 219 or of the membership and other matters of or relating to a company, or the ownership of shares in or debenture of a company or body corporate, or the affairs and other matters of or relating to a company, other body corporate or person, under section 216; or (b) during the pendency of any proceeding against any person concerned in the conduct and management of the affairs of a company under Chapter XVI, such company, other body corporate or person proposes- (i) to discharge or suspend any employee; or (ii) to punish him, whether by dismissal, removal, reduction in rank or otherwise; or (iii) to change the terms of employment to his disadvantage, the company, other body corporate or person, as the case may be, shall obtain approval of the Tribunal of the action proposed against the employee and if the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 04.08.2020 as null and void and let the Appellant continue working as Secretary of the Company during pendency of the Company Petition. In Para 4 of the order entire sequence of the event leading to termination of the Appellant's service by order dated 04.08.2020 has been noticed by the Tribunal. Para 4 of the order dated 25.03.2021 is as follows: "4. The narrative of the applicant herein is that he was appointed as a Secretary-cum-Chief Executive Officer (CEO) of the Club on 12.04.2018, thereafter when CP71/2020 was filed against the Club, he was on 09.05.2020 authorized to represent the Club in the said proceedings, he was on 17.06.2020 compelled to accept a salary-cut) of 25% and his Membership to the Club was stopped by the Members of the GC, despite being specifically contained in his appointment letter dated 12.04.2018 that he would continue as member of the club during his service. While he was continuing as CEO of the Club, this Bench passed an interim order on 26.06.2020 as mentioned above, over which an appeal was filed on 30.07.2020. In the meanwhile some differences being cropped up in relation to filing of the appeal against the order dated 26.06.2020, GC held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under the orders passed by the Appellate Tribunal dated 15.02.2021, ordering suspension of the General Committee and nomination of an Administrator by Union of India to manage the affairs of the Club pending disposal of the main company petition. Para 12 and 14 of the order of the Tribunal are as follows: "12. The case of the applicant is his removal from the company is in violation of the contract in between him and the Club, and his removal having happened during the pendency of the proceeding under section 241 of the Act 2013, he shall be reinstated. Here, this Bench can interfere only when the case falls within the ambit of Section 218 of the Act. As to service matters, if the party is aggrieved of termination of his service, he is at liberty to proceed before the Competent Authority but not to obtain relief u/s 218 because the purpose and object of Section 218 is not to deal with violation of service contract or removal of the employee of a company whose actions are not questioned u/s 241 of the Companies Act, 2013. Making somebody as a party to the proceeding without any allegation against such party cannot be called as proceeding pending against somebody. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake recourse to appropriate remedy, as may be advised. It is useful to extract the entire order of the Hon'ble Supreme Court dated 13.12.2021, which is as follows: "ORDER The grievance of the appellant, is that, because of the observation made by the National Company Law Tribunal (for short, "NCLT") in its order dated 25.03.2021 in paragraph 10, an impression is created that the appellant is guilty and, therefore, Section 218 of the Companies Act, 2013 (for short, "the Act") cannot be invoked. Section 218 of the Act does not make such distinction. It refers to employees of the company. In any case, it is not necessary to dilate on this aspect any further as the appellant was appointed in terms of letter dated 12.04.2018 on the terms and conditions referred to therein including for a term of three years only. elapsed. That period has elapsed. If any condition of such appointment has been breached, it is open to the appellant to take recourse to appropriate remedy, as may be advised. The NCLT has clarified that position in paragraph 11 of its judgment. As a matter of fact, NCLT is dealing with the proceedings under Sections 241 and 242 of the Act, pertaining to allegations fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company falling in the period prior to 2018, therefore though the applicant is arrayed as R18, it cannot be called that this applicant is connected to the impugned affairs of the Company which led to filing of main Company Petition. his is based on appointment is Since service contract, if at all the action of the applicant is in violation of the terms of the contract, the appointing authority is always at liberty to take action against such person. The cause of action and relief falling within the ambit Section 241 and 242 are nowhere related to the service contract of the company entered into with the employee." In any case, it is not necessary to dilate on this aspect any further as the appellant was appointed vide letter dated 12.04.2018 on the terms and conditions referred to therein including for period of three years only. elapsed." That period had elapsed. Rest of the order shall remain as it is. The miscellaneous application is disposed of accordingly." 18. This Appellate Tribunal as well as the Hon'ble Supreme Court by orders as noted above, clearly noted that the period of employment of the Appellant as Secretary from 12.04.2018 has elapsed, hence, no relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, we are not inclined to entertain this appeal at this stage. 3. However, in view of the fact that application has been filed by the appellant under Section 218, Companies Act, 2013 the Adjudicating Authority shall endeavor to dispose of the application at early date. 4. We make it clear that we are not expressing any opinion on the merits of the application and contention of the parties are left open. The appeal is disposed of." 2. We have heard Mr. Deepak Khosla appearing for the Applicant. It is submitted that inspite of the order of this Tribunal dt. 10.08.2023 application CA No. 88 of 2023 has not yet been heard and since then several dates have been fixed. 3. Learned Counsel for the Respondent informs that now 25.01.2024 is the date fixed in the application. 4. Learned Counsel for the appellant has prayed for granting certain other reliefs in the application. 5. We having already disposed of the appeal with the observation that the Adjudicating Authority to decide the application at an early date, we see no reason to entertain prayers made in the application. In view of the fact that 25.01.2024 is a date fixed before the Adjudicating Authority, we request the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order or suo motu. (5) Every order or judgment or notice shall bear the seal of the Tribunal." 22. Rule 150 Sub-rule (1) provides that after hearing the applicant and respondent, the Tribunal shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing. In the present case hearing of CA-88/2023 and CA- 34/2024 was held on 22.02.2024, on which date orders were reserved. It is submitted that prior to 22.02.2024 also there have been several hearing on both the CAs, as has been noted by the Tribunal in the impugned order but hearing not being completed orders were not reserved before 22.02.2024. It is true that order was reserved on 22.02.2024 and pronounced on 05.04.2024, which is beyond 30 days from the final hearing. Whether the order dated 05.04.2024 deserve to be set aside on the ground that order has not been pronounced within 30 days from the date of final hearing is question which need to be answered. 23. Rule 150 Sub-Rule (1) of the NCLT Rules, 2016 cannot be read in manner that any order pronounced after 30 days deserve to be set aside or become void only on that ground. At this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable the Applicant to continue functioning as the Secretary cum CEO of the Respondent No. 1 Club during the pendency of the present Company Petition No. 71 of 2020; and Direct the Respondent Company and members of the General Committee to restore to the Applicant his powers as the CEO; and b) Direct the Respondent Company to produce the minutes of all General Committee meetings for the period from April 2018 to August 2020, all books and records pertaining to the Respondent Company, and also to grant access to the Applicant into his office premises at Cottage No. 42, office computers and official email ID [email protected]; and c) Grant costs to the Applicant, and d) And pass such other order or further order or orders as this Hon'ble Tribunal may deem fit and proper under the circumstances of the case. DISPOSED 12 CA- 88/2023 a) Allow present application and direct for this Court/Govt appreciated applicant's Protection under section- 218 of CA-2013 being arrayed serving Secretary R-18 in CA(AT)-93/22. b) Pass orders on reliefs sought in CA- 364/22 and CA387/22 as Petitioner Ministry has not opposed any Prayers in them, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were seriously pursuing CA440/2022 through the submission of counsel Mr. Deepak Khosla and that despite his request, CA- 88/2023 was not heard. There was no murmur by the Counsel or the party for hearing of CA-88/2023 on priority when CA 440/2022 was regularly heard. The grievance for early disposal of CA-88/2023 was kept in abeyance and is raised after disposal of CA- 440/2022 rejecting his application for recalling the first admission order dated 24.04.2020, 20.06.2020 and consequent order, as his contention and as that of his counsel was that this (CA440/2022) will resolve all the issues including all pending applications. On this premise, number of hearings were granted to Advocate Mr. Deepak Khosla who was appearing either physically or through VC, as also the Applicant Mr. Ashish Khanna who was appearing either physically or through VC. 15. CA-440/2022 was first listed for hearing on 17.11.2022. Thereafter, CA440/2022 was listed on various dates. The effective hearings on this CA took place on 01.12.2022, 09.02.2023, 09.03.2023,20.04.2023, 13.07.2023, 27.07.2023, 10.08.2023,31.08.2023 & 22.09.2023 and at the request of the Petitioner Mr. Ashish Khanna, Mr. Deepak Khosla, L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent should be asked to initiate a departmental enquiry on the corrupt collusion between Principal Bench's Court Master and Mr. Gaurav Liberhan (accused in FIR No103/2021). Para-2 in the email are purported to be certain proofs in corroboration of Para-1 & 6 which are not related to proceedings of 08.02.2024 and 15.02.2024. Para-2(e) states that on 26.02.2021, NCLT ordered to remove Mr. Gaurav Liberhan from NCLT proceedings. 24. In Para-3, the Applicant/Petitioner makes the following comments; It is a concerning matter that since take over on 08/11/22021 the Principal Bench has been favouring Mr G Liberhan even stating close relations with his father Mr. RMS Liberhan- whereas Shri RMS Liberhan was uncle and not father of FIR accused counsel Mr G. Liberhan. Mr Liberhan is also posing in Linkedin as a CBI PP and AAG Punjab which is false. 25. In Paragraph-5 he states as follows;- In the hearing on CP-71/2020 on 15.02.2024 Mr. G Liberhan was indulged to actively participate, despite not being a party or representing any party and specifically objected by my counsel. The averments of my counsel in CA-88/2023 and CA-34/2024 (listed after lunch post below complaints) were not even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Khanna has a personal grievance against Mr. Gaurav Liberhan, he has to vent it out in any other forum or pursue any proceeding against such person outside the NCLT Forum. This Tribunal cannot be used for mudslinging by one or other person and it is totally irrelevant to our adjudicating process. This is causing unwarranted stress on the working of this Tribunal and Mr. Ashish Khanna by virtue of the Hon'ble NCLAT order for early hearing of CA-88/2023 is focused more on Mr. Gaurav Liberhan than the adjudication of his case." 30. At this juncture, we also like to make our observation with regard to sending of emails/communication to the Registry containing various allegations unconnected with the subject matter. The mere fact that litigants are permitted to file/e-file their applications, affidavits, does not entitle the litigant to make allegations unconnected with the request in email, before the Registry. Litigants are entitled to send emails/communication to the Registry only concerning curing of any defect, listing of the appeal/affidavit. No litigant is entitled to make various allegations in the email against the other parties, other counsel or the Registry. The Registry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, tomorrow it will become a practice for all. Registry have loads of important court as well as administrative work to do. Applicant expects a response from the Registry on his personal grievances which cannot happen and there is no necessity." 32. The Tribunal in Para 41 has noted the effective dates in CA-88/2023 which indicate on several dates hearing was done. The Tribunal has made observation that learned counsel for the Appellant may advise his client as to how he should conduct himself in court proceedings. Observations made in Para 45 and 46 are as follows: "45. It is for the Ld. Counsel Mr. Deepak Khosla to suitably advise his client as to how he should conduct himself in court proceedings. We feel this sort of intimidatory tactics, wild and unwarranted allegations in relation to court proceedings contrary to the clear stand taken by the Counsel Mr. Deepak Khosla who also stated that he has advised his client to tender apology, should stop before we can proceed further. 46. We feel that further indulgence to this Petitioner Mr. Ashish Khanna would not be in the best interest of justice to other litigants who are waiting for proper hearing of their matters. Effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and CA-34/2024 with regard to entitlement of protection under Section 218 of the Companies Act. Appellant very conveniently in entire appeal has not referred to earlier order of the NCLT dated 25.03.2021 where application under Section 218 was filed and in which no relief was granted of setting aside his termination or permitting his continuance. This Tribunal in its order dated 15.04.2021 and Hon'ble Supreme Court in order dated 03.12.2021 has given liberty to the Appellant to participate in the process for fresh appointment. It is clear from the submissions of the parties that Appellant has not been appointed as Secretary and some other person has been appointed as Secretary by the present General Council and in any view by the order dated 01.04.2022 a Committee of 15 members has been directed to be appointed by the NCLT, who are at present on the helms of the affairs of the Club. The liberty was granted to the appellant to participate in fresh selection of secretary, where Appellant could not succeed. 35. Appellant has placed reliance on order dated 15.03.2022 passed by the NCLT in CA No.50 of 2022 as well as the letter of the MCA dated 20.09.2022 where it was opined that app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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